Attorney General of New South Wales v Lane

Supreme Court of NSW|2019-10-02|Before: Lonergan J, Button J

Judgment

By summons filed on 31 May 2019, the Attorney General of New South Wales, the plaintiff, seeks an order to extend the status of John Paul Lane, the defendant, as a forensic patient for a period of two years from the date on which the order commences pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MHFP Act").
On 29 August 2019, following a preliminary hearing, Button J made an order appointing two psychiatrists to conduct separate examinations of the defendant and to furnish those reports to the Court. His Honour also made an order pursuant to cl 10 and cl 11(1) of Schedule 1 of the MHFP Act that the defendant be subject to an interim extension order commencing on 30 August 2019 for a period of 2 months from the date on which the order commences: Attorney General of NSW v Lane [2019] NSWSC 1118. This order expires on 29 October 2019.
The defendant opposed the orders sought on the preliminary hearing, and opposes the order sought now, submitting that the Court could not be satisfied to the high standard required that the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient.
As a fall-back position, the defendant argued that whilst not conceding that he was any risk of serious harm to others, any such risk can adequately be managed by less restrictive means pursuant to the mandatory obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) ("the CPOR Act") and potentially the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("the CPPO Act").
The court appointed experts, Dr Furst and Dr Dayalan, both forensic psychiatrists, agree that the defendant does not have a mental illness as defined by s 4 of the MHFP Act. Dr Furst's opinion is that the defendant does not pose a risk of serious harm if an extension of his forensic order is not made, but Dr Dayalan's view is to the contrary.
There was also a lacuna identified in the evidence that the combination of the two psychiatrists reports left up in the air the question of whether there was sufficient evidence for the Court to consider, to the necessary level of detail, whether the risks posed by the defendant can be adequately managed in the community under the requirements and strictures associated with child protection legislation. This was addressed in the oral evidence given jointly by those doctors but it is ultimately a matter for submissions and legal analysis.

The provisions relating to extension orders

Section 54A of the MHFP Act gives power to the Court to extend a person's status as a forensic patient in accordance with Sch 1 to the MHFP Act.
Section 40 sets out the objects of Pt 5 of the MHFP Act which deals with forensic patients: 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, (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims.
The test for making an extension order is set out in cl 2 of Sch 1 as follows: 2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
I am required to take into account a non-exclusive list of matters set out in cl 7(2) of Sch 1: 7 Determination of application for extension order … (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under clause 6 (5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.

Background to the application

The background to the application is set out by Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraphs [2]-[15]: "[2] The background of the matter is as follows. The defendant was born in November 1963 in the Central West of New South Wales, and accordingly is 55 years of age. His parents divorced when he was aged about 10, and he was thereafter raised by his father, although he did have some contact with his mother. His upbringing was not marred by abuse or marked deprivation. Although seemingly a good student, he did not enjoy his time at school. Until his most recent loss of liberty in mid-2017, he lived with his father in the New South Wales town of Lithgow, and has done so since he was 12 years of age. [3] He has never married, and has had few if any romantic relationships. He has worked over the years in various unskilled and semi-skilled positions, and for about eight years before his arrest in 2013, he worked as an assistant green keeper at a local golf club. He suffers from no dependencies upon prohibited drugs, alcohol, or gambling. [4] The defendant does possess a speech impediment which, I infer, may have led to a degree of social isolation. My impression is that he is a solitary person, who is recorded as pursuing interests in such things as rock and fossil collecting, Ancient Egypt, and geology. [5] I mean no disrespect by recounting that he also seems to have some eccentric contemplations, for example, with regard to the nature of the "number" zero, and its possible connection to time travel. Having said that, he has never been diagnosed with a mental illness or a mental disorder, and the current psychiatric opinion is that he does not require specific treatment in that regard. At one stage it was thought that he may have an autism spectrum disorder, but that diagnosis has been said to be seemingly not consistent with his childhood and adolescence. [6] In early 1996, when he was aged 32, the defendant was accused of showing two young boys a pornographic video, along with some pornographic magazines and some "sexual devices". He was also accused of committing an indecent act upon himself in their presence that included the use of a vibrator. The result was that he was charged with committing an act of indecency towards a person under the age of 10 years, and the identical offence towards a person under the age of 16 years. [7] In the Local Court at Lithgow, after pleas of guilty, he received concurrent head sentences of imprisonment for 12 months with a non-parole period of 9 months. After a successful appeal against severity of sentence to the District Court, he was sentenced on one charge to periodic detention for 12 months, and on the other to a three-year bond. [8] Before those convictions, the defendant had never intersected with the criminal justice system. He did not do so again until 17 years later, in September 2013, when he was charged with producing, possessing or disseminating child abuse material, and refused bail for a period of two weeks at that time. In a nutshell, thousands of photographs that constituted such material were found upon his mobile phone, and the allegation was that he had transmitted one of them to another person. The vast majority of those photographs depicted young boys. Some of them were in the worst category of the Child Exploitation Tracking System (CETS) scale. [9] In due course, one count of possessing child abuse material and another count of disseminating it were committed to the District Court. [10] In June 2015, Judge Yehia SC accepted the unanimous opinion of a forensic psychologist and two psychiatrists that the defendant was unfit to stand trial. Unusually, that was not based upon intellectual disability, brain damage, or mental illness. Rather, by that stage the defendant had become so obsessed with the proposition that the convictions from 1996 constituted a gross miscarriage of justice - including the forging of signatures of judicial officers and the like - that he was simply incapable of playing his appropriate role as the accused in a criminal trial. [11] The defendant was referred to the Tribunal, which subsequently found that he remained unfit. The consequence of that was that a special hearing was conducted by judge alone in the District Court about the question of the "guilt" of the defendant. In October 2016, Judge Mahony SC returned verdicts that, on the limited evidence available, the defendant had committed the two offences, in that the thousands of images had indeed been possessed by him, and the one image had indeed been disseminated by him. [12] Subsequently, on 15 June 2017, his Honour imposed a total limiting term of two years and three months, which commenced on 31 May 2017. It is that limiting term that will expire on 30 August 2019. [13] Although it is open to the Tribunal to order the conditional or unconditional release of any person subject to a limiting term at any time during its currency, my understanding is that the defendant has been continuously incarcerated during the entirety of that period. He is currently detained at Kirkconnell Correctional Centre in the Central West of New South Wales. [14] Whilst in custody, the defendant has undertaken no therapy with regard to the issues underlying the most recent offences. Apart from anything else, his obsession with the proposition that a miscarriage of justice occurred over two decades ago makes it impossible for him to engage with the separate proposition that he suffers from a sexual attraction to young boys. [15] To my mind, the final piece of relevant background is that, in 2007, a 12-year-old boy employed at the greyhound racetrack in Lithgow alleged that the defendant approached him and with bizarre bluntness asked whether the defendant could engage in penile/anal intercourse with him. A complaint was made to police but never pursued, with the result that the truth of the allegation has never been determined by a court. In the circumstances, I give that allegation some weight, although of course less than if it had resulted in a conviction."
Dr Eagle, forensic psychiatrist, was retained to express a view based on the papers (without examining the defendant) as to whether an order under the legislation should be sought. Dr Eagle's views have been summarised in the judgment of Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraphs [16]-[28], and as the only recent comprehensive document review, her report provided a useful summary in the context of the orders sought: "[16] In a nutshell, Dr Eagle prepared a report on the basis of documents, and without consulting the defendant personally. (I interpolate that there is no point in me seeking to ascribe responsibility for that state of affairs, because even if it was the result of the position of the defendant, he was perfectly entitled to adopt it.) As one would expect, Dr Eagle noted that that was an undoubted limitation on her ability to come to a firm assessment about him. [17] Dr Eagle recounted the life history of the defendant in conformity with my thumbnail sketch above. [18] Dr Eagle recounted the criminal history of the defendant in accordance with my own summary, including the brief facts of the 1996 offences. She also recounted the adverse findings made by the District Court judge on appeal about the "intentional and calculated indecent behaviour" of the defendant towards the two boys, and the fact that it was done for his own sexual gratification. [19] Dr Eagle also spoke of negative interactions between the defendant and police, including as recently as in 2016 and 2017. The forensic psychiatrist spoke of a report from 1996 which recounted the defendant impressing as being "constantly concerned with sexual matters", and his ongoing reticence to discuss anything about his sexual history. She also referred to the fact that during the currency of the good behaviour bond, and many years later whilst in custody, the defendant has proved to be a very reluctant and difficult recipient of any constructive, rehabilitative help. That has included a refusal to attend the well-known therapeutic program for incarcerated sexual offenders, CUBIT. [20] Turning to the question of diagnosis, Dr Eagle noted it to be complex, and discussed the thesis that the obsession with the 1996 offences is suggestive of an autism spectrum disorder. Dr Eagle was ultimately unable to come to a firm opinion about that, in the absence of longitudinal assessment, which I understand to mean more information about the defendant's life over a number of years. [21] Dr Eagle also noted a finding of low average intelligence, but queried whether there may be gaps in the information underpinning that finding. [22] Dr Eagle expressed the view that it is likely that the defendant suffers from the disorder paedophilia. She relied upon: the two sets of offences committed by the defendant, separated by many years; the noted preoccupation with sexual activity; and the almost complete refusal to engage in any assessment of his sexual feelings and conduct. In short, the forensic psychiatrist spoke of the defendant as likely having "a sexual arousal disorder involving children". [23] Separately, although Dr Eagle administered various statistical risk assessments, her report made clear the well-known limitations of such instruments. Having said that, one tool assessed the defendant in the above average risk category. In discussing another tool, Dr Eagle noted a number of adverse dynamic factors. On the other hand, she made it clear that a reliable assessment cannot be properly undertaken with that latter tool without the benefit of a clinical assessment. [24] Ultimately, the forensic psychiatrist expressed the following opinions. The defendant does not clearly meet the diagnostic criteria for any psychological or psychiatric condition. The suggestion of autism spectrum disorder was not embraced unequivocally. A psychotic disorder based on the obsession about the 1996 offences could not be established. As I have recounted, a paraphilic disorder, namely paedophilia, is likely. His obsession with the previous charges had not only made the defendant unfit to stand trial, but has also made rehabilitation with regard to the current offences very difficult. In the absence of any other mechanism whereby a mandatory risk management regime can be imposed upon the defendant, the forensic psychiatrist expressed the view that the defendant poses "an above average risk of sexual reoffending" if he simply ceases to become a forensic patient. [25] The psychiatrist went on to express the opinion that, although the 1996 offences were "non-contact" offences, they certainly could have resulted in serious psychological harm to their young victims. Having said that, she also opined that "child abuse material offenders have been assessed at a lower risk of sexual reoffending than "contact sexual offenders". On the other hand, although the offences committed two decades ago by the defendant were "non-contact", they were undoubtedly committed in the presence of children. Bearing in mind other factors such as the dissemination of one image and the reluctance of the defendant to engage in rehabilitation, Dr Eagle expressed the view that the defendant "is at risk of causing serious harm to others, specifically children, in the absence of" a regime featuring monitoring and supervision. [26] The psychiatrist went on to speak of the factors that, if they were to change, could reduce the risk of reoffending on the part of the defendant "over time". Dr Eagle spoke of the attitude of the defendant significantly increasing his risk of causing serious harm to others, and of the requirement of a "comprehensive psychological assessment of his offending behaviour by a forensic psychologist experienced with sexual offending". She also expressed the view that anti-libidinal medication should be considered, along with psychiatric assessment, and further information with regard to the possibility of autism spectrum disorder. [27] Finally, the forensic psychiatrist spoke of the steps that could be taken by way of the defendant remaining a forensic patient by way of his limiting term being extended, not least attempting to restrict his access to children and to the internet. [28] She concluded with the proposition that there are no other less restrictive or alternative means of managing the risk posed by the defendant at this stage; in particular, he does not suffer from a mental disorder that could be the subject of compulsory treatment pursuant to mental health legislation."
Assessments as ordered by Button J took place in August and September with two forensic psychiatrists, Dr Furst and Dr Dayalan, and detailed reports were provided. They reached opposite views both as to the risk presented by the defendant, and on the question of whether his risk could be adequately managed by other less restrictive means.

A preliminary issue: the admissibility or otherwise of evidence in respect of a s 55 transfer decision made by two psychiatrists as a cl 7(2)(i) consideration as "any other information that is available as to the risk that the forensic patient will in future cause serious harm to others"

Counsel for the plaintiff submitted that I should take into account an assessment by Dr Hearps and Dr Goodenough in September 2019, a few weeks prior to the hearing, as evidence of a s 55 MHFP Act transfer notice. The evidence suggested the transfer was made pursuant to ss 55(2) and 55(3) on the basis that two medical practitioners, one of whom is a psychiatrist, had certified the defendant as mentally ill. Counsel for the plaintiff said that I should receive that material as evidence of the fact that such an order was made, but that the plaintiff did not rely on the documents as to the truth of anything contained in them.
Apparently the transfer never took place and the plaintiff remained where he was. The defendant objected to this material being tendered pursuant to ss 55, 56 and 135 of the Evidence Act 1995 (NSW).
In the context of this application where I am required to have regard to a non-exclusive list of matters set out in cl 7(2) of Schedule 1 of the MHFP Act, if the material could rationally affect my assessment of factors, or if it corresponds to the type of report or document identified among those factors, it would likely be admissible, unless s 135 operates to exclude it.
The material does not correspond with subclauses (b) to (h) in my view but it could conceivably correspond with subclause (i), which is a "catch all": "any other information that is available as to the risk that the forensic patient will in future cause serious harm to others."
The material sought to be tendered is not in a reasoned report form and is somewhat opaque to analysis. In particular it does not identify the "mental illness" alleged, nor does the material in issue address in any relevant way the test for this application. The fact that the transfer documents were prepared could be considered tangentially relevant, however I exercise my discretion pursuant to s 135 of the Evidence Act to exclude it because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant, and I disregard it for the purposes of the determination of this application.

Safety of the community: cl 7(2)(a)

The plaintiff's written submissions focussed on the defendant's criminal history of charges 16 years apart. Emphasis was placed on the acts of indecency committed by the defendant in January 1996, involving a person under 10 years of age, and a person under 16 years of age. The details of that offending is set out by Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraphs [6]-[7], reproduced in paragraph [11] of this judgment. The plaintiff's written submissions drew attention to that fact that despite pleading guilty to the charges, the pre-sentence report prepared for the severity appeal included a note as follows: "Despite his plea of guilty, the offender strongly professed his innocence of wrong doing. He stated that his original solicitor had deceived him and was surprised that his appeal was not on all grounds and only against the severity of penalty. Mr Lane was adamant that he should not be held responsible for the children observing his sexual behaviour in his bedroom, nor their constant review of his sexual objects and magazines as the children were already sexually aware and insistent to the point that he was unable to control them. He only begrudgingly agreed that he as an adult had a responsibility to not show sexually explicit videos to minors."
The other offending occurred in August and September 2013 - dissemination of child abuse material - which was described as 5,890 child pornography images and 54 videos on his iPhone saved in various albums including "Boys naked", "Boys sucking boys", "Boys erection", "Boys fucking boys", and "Wanting to be fucked". The material depicted images of children between 18 months and 15 years old, predominantly male. Investigating police estimated there are about 3,000 different victims within the classified material. There was an additional count of dissemination by MMS of one pornographic image.
The plaintiff's written submissions also mentioned an investigation by police for sexual misconduct at Lithgow Greyhound and Harness Racing Track in January 2007 where it is alleged that the defendant had a pornographic magazine visible and said to a 12 year old boy whom he paid for helping him, "Can I fuck you up the arse?".
Mention was also made of a case note dated April 1999 made by a probation and parole officer recording that the defendant had numerous pictures of children associated with his charity work and that was a concern because the defendant had been overseas on several occasions.
On behalf of the defendant it was submitted that the community could be adequately protected if the defendant were released to reside in his father's house with counselling arranged in the community. There needs to be a careful distinction between what would be optimum and what is the least restrictive means of adequately managing the defendant's unacceptable risk of serious harm.

The reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient: cl 7(2)(b)

Dr Furst

Dr Furst concluded that the defendant fell into the moderate, or average range of risk of sexual reoffending and possibly lower, and that the risk of recidivism was much more likely to be in the form of accessing child abuse material rather than "hands on" or more serious offending against a child. [1] The plaintiff argued that this analysis seems to have fed in to the conclusion by Dr Furst that the defendant did not pose a risk of causing serious harm to others if he ceases to be a forensic patient, because child pornography was not thought by Dr Furst to qualify as "serious harm". I do not accept that that is the only way to read Dr Furst's conclusions. It was argued that it is open to this Court to find that "serious harm" for the purposes of the statute could include accessing child abuse material, given such material is never a victimless crime. I will return to this issue later in this judgment.
Dr Furst says that the defendant does not have a mental illness and is not mentally ill. Dr Furst also ventured the view that an extension of his forensic status is "not warranted". In his second report, Dr Furst reiterated that view. Dr Furst also emphasised that there are no grounds for imposing a community treatment order, there are no grounds for imposing a guardianship order, and that risks identified of sexual reoffending, especially in relation to accessing child abuse material can probably be effectively managed with psychological support being offered on a voluntary basis as well as the measures and restrictions contained in child protection legislation. Dr Furst explained in his oral evidence this support would focus on working through the defendant's preoccupation with injustices "so that he can cope from day to day and get back to work and function, essentially, as a normal citizen of the community." [2]
Significantly Dr Furst, both in his report and in his oral evidence emphasised that the defendant's reoffending relative to other sex offenders is "moderate" and he sets out the literature that supports that opinion. Dr Furst explained in his oral evidence the limitations of the risk assessment tools used and that reoffending for sex offenders is a small risk in terms of likelihood of it occurring: "I think the problem with these tools is that they are not precise. The number one problem is that they're not reliable in individual risk predictions. They are good for groups of people. The problem with groups of people is that the groups that these instruments are used, have been derived from, are not the same as Mr Lane. They are groups of racists, they're groups of people who had more severe offending as a rule and probably none, as far as I'm aware, of having internet offending or child abuse material offending because they were derived before the internet and child abuse material was around." [3] … "It might be useful to put some numbers on this just to assist the Court as well. The CUBIT study shows that CUBIT treatment doesn't really reduce the risk of reoffending against non CUBIT treatment. It shows the risk of reoffending was around 12 per cent in New South Wales for sex offenders in five year follow‑up. Internationally it's 5 to 15 per cent. So the absolute risk if you take him as being an average sex offender would be in that range of 5 to 15 per cent. The risk of violence I would suggest is a lot lower than that for Mr Lane and the risk of child abuse material reoffending is in the order of 5 per cent. So 2 to 6 per cent or thereabouts. They're quite low numbers. It is not like we're, that's why I'm suggesting that even if you, the risk assessment tools suggest that someone is high risk but it's relative to other sex offenders. That's not an absolute risk of being high risk of reoffending, it's higher than average risk compared to other sex offenders where the overall risk is low, like maybe say 5 to 12 per cent. Or it might be lower because those tools are misleading because they don't include sex child abuse material. I would suggest the risk for Mr Lane absolutely is around 5 per cent based on all the information I've reviewed. That might avoid this confusion about high risk, medium risk and low risk." [4]
Dr Furst referred to unusual aspects of the defendant's presentation including a slight speech impediment, a somewhat odd affect, that he is obsessive and eccentric and has some autistic traits. Dr Furst thought that the defendant may be on the autism spectrum, however this does not qualify as a psychiatric diagnosis. Dr Furst excluded depression, mania and psychosis and noted there was no indication of excessive alcohol consumption or use of illicit drugs.
Dr Furst disagreed with the opinion expressed by Dr Eagle as to the defendant meeting the criteria for paedophilic disorder and explained his basis for this further in his oral evidence: [5] "Well, I found that the evidence was insufficient to make a diagnosis of paedophilia. For example, I will just go to the part where I asked him about that. It's page 11, the bottom of my report page 11. The words were to the effect or actual words were "that way I'll prove I'm not interested about" ‑ which was about child abuse material and children in general. And he denied having a sexual attraction to children, prepubescent children and no apparent sexual preoccupation at the time of the assessment with myself. However, I have noted in the caveat to that that such self-report may be unreliable or self‑serving, as in he may have those interests or sexual attraction, but not be giving a true account to myself. He also described himself, broadly, as being bisexual, so attracted to women and men and ‑ which means that if he, and I think that he has had, I am fairly certain that he has had interactions, sexual interactions with adults as well as this supposed interest, you might call, proposed paedophilia. So I think the status is that there are indications suggestive of paedophilic interest. Paedophilic interest is not enough to call someone, to regard or categorise someone as having a paedophilic disorder which is like more intrusive or a continual interest over at least a six month period of behaviour indicating that. So I think what has happened, and what I would propose and suggest is that there is, there are indications that he may well have paedophilic attractions or interest, but I wasn't satisfied that there was a paedophilic disorder."
Dr Furst disagreed with Dr Eagle's conclusion that the defendant posed an above average risk of sexual reoffending if he ceases to be a forensic patient.
On another testing parameter, the Level of Service Inventory-Revised ("LSI-R"), Dr Furst said that the defendant's score fell in the low/medium risk/needs range for general and violent recidivism and that this accords with Dr Furst's own clinical impressions that the defendant is not a high risk offender and has a relatively low risk of violent or general offending.
Dr Furst also made the point that there is no clear treatment for the defendant: [6] "Yes. I think the reason you are unclear your Honour, if I can assist, is that there is no clear treatment for Mr Lane. He doesn't have enough insight into sexual deviance if he does have that, which you might take the view he does. But even if one takes that view he is not anywhere near approaching that in a therapeutic manner. As in theoretically and hypothetically if he was to engage with psychologists in the community, say working for a forensic psychology services, I imagine the entire 60 minutes, 90 minutes would be taken up with him talking about the injustices of his current situation legally rather than anything meaningful about his risk factors or the issues Dr Dayalan has identified as dynamic concerns. What he wants to do is go back to work and forget about everything and that's really, my position is even with motivated sex offenders treatment doesn't work very well. It might work marginally but it doesn't work very well. With someone like Mr Lane, I would suggest to the court we should forget about it and just get him back to work again and monitor other factors which can monitored such as stopping him from having a phone, internet access and checking his house from time to time to make sure he is not accessing material of this nature and make it very behavioural and mechanical. Nothing else will really be effective in my contention, in my opinion."

Dr Dayalan

Dr Dayalan concluded, (utilising actuarial assessment tools), that the defendant is in the above average category of risk, with a high level of stable dynamic risks and needs. [7] Dr Dayalan said that the defendant had not rehabilitated to a satisfactory extent and therefore an "argument could be made" that his risk of sexual offending has not significantly reduced from the time that the charges were laid. [8]
Dr Dayalan said that in his view the defendant "would pose a serious risk of sexual reoffending if released without any supervision or treatment", [9] and observed that he is unlikely to voluntarily accept any treatment or supervision.
Having said that, Dr Dayalan agreed that the defendant does not present as a mentally ill or mentally disordered person and therefore does not come within detention provisions under the Mental Health Act 2007 (NSW). Dr Dayalan also agreed with Dr Furst that there is no potential for a community treatment order and that the defendant does not need a guardian.
Dr Dayalan said in his oral evidence that he was aware of the obligations in place under child protection legislation for a sex offender although he did not refer to them in his reports. Dr Dayalan made the point that being "on the Register" would not allow for any treatment to be mandated for the defendant and so did not believe that would directly address the dynamic risk variables identified in his report. [10]
Dr Dayalan expressed a view that the defendant's fixation on the previous legal proceedings and grievances associated with being found unfit to be tried would probably increase the risk relevant to his reoffending [11] but he does not explain how or why that is the case.
When pressed on the issue of availability of "treatment" as a reason to keep the defendant under the order, Dr Dayalan said that there is "some evidence" as to usefulness of treatment of individuals like the defendant, but that it was "not strong evidence." [12] Dr Dayalan described potential treatment as "exploration into the option of medication" and "some form of cognitive behavioural therapy". [13]

The report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(b): cl 7(2)(c)

Dr Eagle, forensic psychiatrist, carried out a document review but did not personally assess the defendant. She noted the defendant's diagnosis was complex and she could not resolve the diagnostic complexity on the basis of the information she had. Dr Eagle did however conclude that the defendant does not clearly meet the diagnostic criteria for any psychological or psychiatric condition.
Dr Eagle formed the view that the defendant "likely" has a paraphilic disorder, paedophilia, because: [14] "The nature of the charges indicate sexual arousal in relation to children. He has been described as having a preoccupation with sexual activity. Unfortunately, he has demonstrated limited willingness to engage in any assessment of his sexual thoughts, behaviours or fantasies with the exception of his engagement with psychologist Mr Robinson. In that instance Mr Robinson appeared to accept Mr Lane's self reported minimisation of his involvement in and responsibility for the first offences. The index offences, have nonetheless cast significant doubt on Mr Lane's account of those initial offences and indicate that Mr Lane likely has a sexual arousal disorder involving children."
Dr Eagle scored him in the above average risk category on the Static 99-R assessment instrument. There were limits in using the Stable 2007 scoring instrument because Dr Eagle had not conducted a clinical assessment of the defendant. Dr Eagle identified various risk factors including the defendant's negative attitude to supervision and treatment, his poor problem solving skills, his feelings of social rejection, his possible identification with children, his limited prosocial supports, his negative emotionality (particularly in relation to his charges and legal authorities), some evidence of sexual preoccupation and drive, and likely a deviant sexual preference given the nature of his offending. [15]
The plaintiff's written submissions emphasised that Dr Eagle considered the defendant's likely paraphilia disorder is a significant risk factor for sexual reoffending and if inadequately assessed, treated or managed, will significantly increase the defendant's risk of sexual reoffending. [16] In essence Dr Eagle's conclusion is that the defendant poses an "above average risk" of sexual reoffending if he ceases to be a forensic patient. [17]
The defendant argued that this Court should give very little weight to Dr Eagle's opinion because she did not assess the defendant and her report amounts to nothing more than a document review. Counsel for the plaintiff conceded there is some limit on the weight Dr Eagle's report should be given.
I am persuaded by the defendant's submission that Dr Eagle's report, whilst in my view carefully reasoned and thorough, has to be given little weight as she has not assessed the defendant. One matter I can take into account from that report, and this is common to the reports of Dr Dayalan and Dr Furst, is that the defendant does not meet any diagnostic criteria for any psychological or psychiatric condition. Another matter I can draw from Dr Eagle's report is that because there is an absence of material that would allow longitudinal assessment with the benefit of collateral information by a treating psychiatrist, [18] and it does seem most unlikely this will ever be obtained, diagnostic clarity remains unlikely.

Any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient: cl 7(2)(d)

The plaintiff's written submissions emphasised psychologists' and psychiatrists' reports back to 1996. Given for the purposes of these proceedings I am assessing the risk that the defendant presents now there is limited relevance to those older reports, although I certainly do not disregard them.
An assessment by Mr Robinson psychologist in 1996 and 1998 included the observation that the defendant vehemently denied any sexual interest in children and that in his view this obviously "is troubling" in the context of the charges and convictions.
In 2014 Ms Robilliard, a forensic psychologist, observed that the defendant was difficult to interview, had an inappropriate manner, and had cognitive rigidity and fixed thinking consistent with autism spectrum disorder. The defendant was also not prepared to discuss the charges and professed the belief that "the 1997 charges remained unresolved."
Dr Martin, forensic psychiatrist, reviewed the defendant in 2014 and noted preoccupation with the legal proceedings from the 1990s, including that the defendant's view was that documents had been forged and that he was never convicted - "someone forged the Judge's signature." [19] Whilst Dr Martin raised the possibility of an underlying psychotic disorder such as schizophrenia, he did not conclude that way but noted an impression that the defendant had an underlying paraphilic disorder such as paedophilia.
Dr Allnutt, forensic psychiatrist, in March 2015 noted the defendant's pathological fixation regarding the previous proceedings. Dr Allnutt thought autism spectrum disorder was a reasonable differential diagnosis, but did not have an adequate developmental history to confirm that.
Dr Cheung, forensic psychologist, in March 2017 observed on risk assessment tools that the defendant was in the above average risk category.
Dr Gubarewski, psychologist, in March 2018, noted difficulty confirming autism spectrum disorder because of the absence of information and the defendant's continued refusal to give consent for contact with his family to obtain that information.
Dr Chew, psychiatrist, in April and May 2018 found the defendant very paranoid and noted that the defendant denied suffering from a mental illness, maintaining that it was "a legal issue not a mental issue."
The confusion diagnostically continues with Dr Keating, a psychiatric registrar, in May 2018 noting possible features of autism spectrum disorder or an underlying diagnosis of psychotic illness.
Dr Nguy, psychiatrist, in June 2018 noted autism spectrum disorder and a lack of insight into his offences.
Dr Spencer, forensic psychiatrist in July 2018 concluded that the defendant did not have a psychotic illness but did have a presentation consistent with autism spectrum disorder.
Ms Brunette, psychologist, assessed the defendant on three occasions between June 2018 and February 2019 and noted that the defendant had refused to do a sex offender program stating he wanted to "go to trial". He also denied that he had a disability and so would not consent to referral to the NDIS.
I conclude that all these varying assessments and reports simply reinforce the fact that the defendant has an odd manner, likely from autism spectrum disorder, that he is obsessed with the conclusions reached regarding his offending in the 1990s, he does not have any other diagnosed psychiatric disorder although possibly meets a paedophilia diagnosis, but highly qualified experts do not agree on that issue.

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

The plaintiff's written submissions trace through the history of multiple assessments and findings by the Tribunal however in my view the most relevant one is the most recent assessment in August 2019 which was focussed on the ongoing question mark over fitness to plead and/or be tried and concluded that he remained presently unfit to be tried.
A person's fitness to plead or otherwise, particularly in this case where there is an issue surrounding obsessive thinking about earlier interface with the justice system against a background of probable autism spectrum disorder and low cognitive ability, is a very different question to the question of whether the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.
It must be an unusual situation where a defendant has remained under the supervision of the Mental Health Tribunal as a result of a particular combination of circumstances that have prevented, and continue to prevent, his full engagement with the criminal justice system, yet he is not someone who possesses a diagnosable psychiatric disorder.

Clauses 7(2)(f), 7(2)(g) and 7(2)(h)

The plaintiff's written submissions make it clear that there is no reliance on material that falls within clauses 7(2)(f) or 7(2)(g).
In respect of cl 7(2)(h), the plaintiff draws attention to the fact that when he imposed the limiting term for the possession and the dissemination of child abuse material offences in 2013, Judge Mahony SC regarded the objective seriousness of the defendant's possession offences as "high or towards the higher end of the mid-range." [20]

Whether serious harm to others can include possession and/or dissemination of child abuse material

Counsel for the plaintiff argued that "serious harm" included possession and/or dissemination of child abuse material. It was submitted that where Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraph [55] said this: "[55] Sixthly, it may be true that there is a way of thinking about individuals assessing, possessing or disseminating child abuse material that does not characterise such behaviour as causing serious harm. That could be on the basis that the harm to the depicted child has already been caused by way of its prior production. But on reflection I have come to the view that that is a highly attenuated way to think about the concept, especially bearing in mind its reasonable breadth, in accordance with the analysis of the concept by Davies J and R A Hulme J respectively in Attorney-General of NSW v Kereopa[2017] NSWSC 411 and Attorney-General of NSW v Kereopa (No 2) [2017] NSWSC 928, with which I respectfully agree. And in any event, such an approach is of little moment to my determination, for the simple reason that I think that the circumstances as they stand now raise a real question about the possibility of the defendant committing a sexual offence against a child in person, and not just by way of accessing child abuse material on the internet or elsewhere." his Honour identifies as "serious harm" conduct that promotes the generation of child abuse material and so that risk too should be considered.
In my opinion, Button J does not decide the issue, but in the context of a preliminary hearing indicates a preliminary view, relying upon Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 and Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 where Davies J and R A Hulme J indicated psychological harm could comprise "serious harm" under the MHFP Act. Button J then demurs, concluding that he does not need to determine that question at that time because in his view there is here a risk of "hands on" offending on the part of the defendant.
In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411, Davies J at paragraph [14] stated: "[14] The unacceptable risk under the MHFPA is causing "serious harm to others". What authority there is on these undefined words tends to point to the inclusion of behaviour that would not extend nearly as far as the behaviour that constituted a serious sex offence or a serious violence offence. The matter is highlighted in the present case where the index offences did not involve personal violence."
In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, R A Hulme J at paragraph [16] stated: "[16] The "risk of causing serious harm to others" was considered by Davies J in his judgment on the preliminary hearing of the present matter. I agree with his Honour that it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of "grievous bodily harm" (defined in the criminal law as really serious bodily harm). I accept the submission on behalf of Mr Kereopa that it contemplates something more than would satisfy the minimum threshold for "actual bodily harm" under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not "serious harm"."
In my view "serious harm" in the context of this legislation can include psychological harm to children who are made the subject of child abuse material. Whether access and dissemination of that material amounts to fresh "serious harm" is an issue that would require more nuanced evidence and debate to determine than what I have available here.

Plaintiff's submissions

The plaintiff submitted that in determining the first limb, unacceptable risk, an evaluative task is required considering past conduct, the likelihood of reoffending and the gravity of reoffending, and that in the context of "making the community secure from harm", this Court should take into account the following matters: "a) the nature of his previous offending; b) his likely paraphilic disorder; c) his limited capacity for relationship stability; d) his poor problem solving skills; e) his lack of prosocial supports; f) negative attitudes to supervision and preoccupation with injustice; g) his limited acceptance of responsibility for his offending behaviours; and h) his refusal to engage in psychological or psychiatric assessments and interventions."
Emphasis was placed on Dr Eagle's reference to the seriousness of offending against children because it causes serious psychological harm to those children, and Dr Dayalan's opinion that the defendant poses a serious risk of sexual reoffending if released without supervision or treatment. It was submitted that Dr Furst's views should be viewed with circumspection because Dr Furst's report contains a sub-text that accessing child abuse material does not amount to "serious harm" for the purposes of the MHFP Act.
Also the defendant has not participated in a sex offender program or therapeutic intervention, (although I observe that Dr Furst says that this does not necessarily inflate his risk, and research shows programs do not necessarily decrease the risk of reoffending).
The substantial weight of the evidence supports a conclusion that the defendant poses an unacceptable risk of causing serious harm.

Defendant's submissions

The material does not support to the high standard required that the defendant poses an unacceptable risk of serious harm to others.

Decision

Having carefully analysed all of the available evidence, I am of the view that the first limb of the test has not been met. Whilst there is some risk, it does not reach the standard required to reach the statutory threshold. In reaching this view I observe that many would regard any risk of abuse to a child to be unacceptable, but the evidence does not persuade me to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.
I do not accept that Dr Furst's opinion is undermined by any assumption on his part that harm to children used in child abuse material does not qualify as "serious harm".
I was unpersuaded by Dr Dayalan's heavily qualified view about the reality of treatment, and this being any basis to keep the defendant under an order and supervision by the Tribunal.
Whilst given my decision on the first limb, I do not need to consider the second limb of the test as to whether the risk cannot be managed by other less restrictive means, even if the first limb was satisfied, I am persuaded that far more appropriate and useful management of any risks presented by the defendant is to be in the community under the child protection legislation to which he is subject. This is much more directed towards the obligations, orders and management likely to reduce the potential risk to children posed by the defendant and persons like him.
Annexed to the defendant's submissions was a very useful schedule of comparison between the respective legislative regimes, and this schedule is annexed to this judgment.
This comparison demonstrates in this particular defendant's case the likely lack of utility involved with a number of the MHFP Act's potential powers, conditions and orders to manage the defendant's risk, when compared with those available under child protection legislation.
Whilst this will not always be the case, in the unusual circumstances of this case, where a defendant was found unfit to plead because of obsessive preoccupations with his previous interface with the justice system (made more pronounced and difficult due to his likely underlying autism spectrum disorder), but he does not have a mental illness, the provisions of the child protection legislation present as more relevant and more useful, and are less restrictive and will adequately manage his risk.

Orders 1. The plaintiff's summons is dismissed. 2. The plaintiff is to pay the defendant's costs. Annexure to Defendant's Written Submissions (261 KB, pdf)

Endnotes

Report of Dr Furst, 19 September 2019, p 21.
T13.48-T14.1.
T21.17-26.
T22.6-25.
T12.16-39.
T27.16-34.
Report of Dr Dayalan, 19 September 2019, p 20.
Report of Dr Dayalan, 19 September 2019, p 21.
Report of Dr Dayalan, 19 September 2019, p 22.
T26.27-30.
Report of Dr Dayalan, 19 September 2019, p 21 at [5].
T27.39-40.
T27.50-T28.1-2.
Report of Dr Eagle, 27 March 2019, paragraph [63].
Report of Dr Eagle, 27 March 2019, paragraph [68].
Report of Dr Eagle, 27 March 2019, paragraph [72.3.1].
Report of Dr Eagle, 27 March 2019, paragraph [72.2.2].
Report of Dr Eagle, 27 March 2019, paragraph [61].
Report of Dr Martin, 2 December 2014.
Remarks on Sentence, 15 June 2017 at [43]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (5)

Cases Cited (3)

Cited By (1)