Attorney General of New South Wales v McGuire

The rape offences

1. While not directly relevant to the question of whether an extension order should be granted, the facts surrounding the rape offences with which the defendant was charged should be set out for completeness. Murrell DCJ recited these facts in her judgment and they are as follows: "[21] At about midday on 4 April 2006 the accused went to premises adjacent to the complainant's residence. In the period until about 4:30 or 5 p.m. he drank with two acquaintances, consuming at least eight stubbies beer and probably more. In the course of the afternoon, the accused observed the complainant in the next-door premises and said words to the effect of 'she would be all right for a girlfriend'. He became somewhat intoxicated and at one stage was 'nodding off'. When he left the premises he was 'a little bit intoxicated' but was 'not overly drunk' and was capable of walking. He saw a cat and was told that it belonged to the complainant. He picked up the cat and walked in the direction of the complainant's residence. [22] It was the complainant's evidence that a man (who must have been the accused) appeared on her front porch and asked to come in for a drink. According to the complainant's police statement 'he spoke of wanting to be with (the complainant) and wanting to be (her) friend'. The complainant refused the request to come into her house. The man was drinking a stubbie of beer. Later, the police seized an empty stubbie from the complainant's front porch. It was found to contain the accused's DNA. [23] The accused went to the side of the house and then to the backyard, where he played with the complainant's young daughter. The complainant removed washing from the line and took it into the house. The complainant's daughter came into the house, followed by the accused. The complainant asked the accused to leave the house but he refused to do so. The complainant walked to the front of the house, successfully enticing the accused out of the house. The complainant went back inside, securing the latch on the front screen door. She went to the kitchen to locate a key so that she could lock the front screen door. [24] When the complainant was standing in her living room, the accused grabbed her by the arms and told her to be quiet. He put a hand over her mouth. The complainant bit the accused on the hand. The complainant found herself lying on her back on the floor. The accused pulled his pants down to his knees and pulled her pants down, possibly to her knees, and proceeded to have penile/vaginal intercourse, causing the complainant to feel some pain. The complainant estimated that the intercourse continued for between five and fifteen minutes. The complainant was struggling. She managed to get onto her hands and knees and reached for the telephone, intending to dial for assistance. However, she discovered that the lead had become disconnected. She hit the accused over the head with the telephone. He was undeterred. She began to search for her mobile telephone. As she was doing so, the accused commenced penile/anal intercourse, which continued for five to ten minutes. The complainant believes that the accused did not ejaculate. [25] The complainant found herself with her back to the floor. The accused 'tried it again'. It was the complainant's evidence that the accused put his penis back into her vagina 'quite a few times'. 'Almost immediately' that the accused 'tried it again' the complainant succeeded in yanking his penis. It was soft. After words were exchanged, the accused left, saying that he would 'come back next week to finish the job'. [26] The complainant dressed, comforted her daughter and called the police."

Mr McGuire's background

1. As a final background matter, although again not directly relevant to the question of whether an extension order should be granted, I have set out below the personal background of the defendant, as summarised by Garling J in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288: "[16] Mr McGuire was born on 11 November 1972 in Ballarat in Victoria. He was the youngest of nine children. [17] In the late 1970's the family moved to NSW, ultimately to Department of Housing accommodation at Mt Druitt. Mr McGuire began school whilst living in NSW. He attended Shalvey High School and was expelled for truancy in Year 8. During his period of time at school he had been involved in physical confrontation with other students. [18] After leaving school, he remained living at home helping his father with the collection of scrap metal. When he was 17, he left home and moved in with his sister, and worked as a painter's labourer. He was sacked from this job for absenteeism. [19] He then moved to Young where his parents were living and there worked as a casual fruit picker. In the early 1990s, he met his former partner in Young and they lived together for about two years. Some time during 1993 or 1994, the precise date is unclear and of no particular moment, he and his former partner had a daughter. [20] He apparently met his former partner at the TAFE College at Young where he was enrolled in a literacy course. After the termination of the relationship in Young, he moved to Richmond and resided with his brother. [21] His criminal record commenced when he was about 24 years old. He was first convicted in the Local Court for breach of an apprehended violence order and malicious damage. [22] Thereafter his criminal record consists of quite serious driving offences, including driving in a manner dangerous and offences of violence including assault and petty larceny. [23] In December 2003, he was charged with driving whilst under the influence of alcohol and driving his vehicle in a reckless or furious way at a speed or manner dangerous to the public. For these offences he was imprisoned for 12 months, with a 9 month non-parole period. [24] In February 2005, he was again charged with driving his vehicle in a reckless or furious way at a speed or manner dangerous to the public, and driving whilst disqualified together with a number of other driving offences. For these offences, he was sentenced to a total of 12 months imprisonment commencing in February 2005, with a non-parole period of 9 months. He first became eligible for release on 4 November 2005. [25] Just over four months after his release from imprisonment, he committed the … [rape] [o]ffences."

Forensic patients under the MHFP Act

1. Part 5 of the MHFP Act relates to forensic patients and correctional patients. The objects of Part 5 are contained in s 40 of the MHFP Act and 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."
2. Forensic patients are defined in s 42 of the MHFP Act as, relevantly, a person detained in a mental health facility or correctional centre, or released from custody subject to conditions, pursuant to an order under the MHFP Act, or as a person subject to an extension or interim extension order. As the defendant is subject to an interim extension order, he is a forensic patient. The defendant has been a forensic patient since being referred to the Tribunal by Garling DCJ on 25 August 2008.
3. The Tribunal must review the case of a forensic patient at least every six months: s 46(1). Following such a review, the Tribunal may make orders regarding the forensic patient's continued detention, care or treatment in a mental health facility or correctional centre, or regarding the forensic patient's release, either unconditionally or subject to conditions: s 47(1) of the MHFP Act. When making an order, the Tribunal must have regard to the matters set out in s 74 of the MHFP Act and, if making an order for release, it may impose any of the conditions contained in s 75(1) of the MHFP Act. In this case, the defendant was released from detention by the Tribunal, subject to conditions, on 26 August 2013.
4. If a forensic patient breaches a condition of their order for release, the President of the Tribunal may make an order for the apprehension of that patient: s 68(1)(a) of the MHFP Act.
5. Section 54A of the MHFP Act provides that a person's status as a forensic patient may be extended in accordance with Sch 1. Clause 1 of Sch 1 empowers the Court to make an extension order. Clause 2 states the test which the Court must apply in making an extension order and is in the following terms: "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 (including classification as an involuntary patient under section 53). (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others."
6. Clause 5 sets out the documentation that must accompany an application for an extension order, which includes documentation that addresses each of the matters in cl 7(2) (set out below) and a report, prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that, essentially, addresses the matters contained in cl 2. At a preliminary hearing, if satisfied on the aforementioned documentation that an extension order should be granted, the Court must order two qualified psychiatrists, registered psychologists or registered medical practitioners to conduct separate examinations of the forensic patient and to furnish reports of the results of those examinations on the Court: cl 6(5) of MHFP Act. In this matter, Hoeben CJ at CL presided over the preliminary hearing and made those orders.
7. Clause 7(2) prescribes the matters which the Court must have regard to when determining finally whether to make an extension order. It is necessary to set out the clause in full: "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 Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General 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."
8. Clause 8(1) provides that an extension order commences when it is made or when the limiting term or existing extension order expires, whichever is earlier, and that an extension order expires as specified in the order. Significantly for present purposes, the Court is not prevented from making a second or subsequent extension order against the same forensic patient: cl 8(2) Sch 1 of the MHFP Act.
9. Clause 9 states that the making of an extension order does not affect the operation of another order regarding the care, detention or release from custody of the forensic patient.
10. Finally, cl 12 provides that the Court may at any time vary or revoke an extension order following an application by the Minister or upon the recommendation of the Tribunal.

Applicable Principles

1. As stated above, before making an extension order the Court must be satisfied to a high degree of probability that the forensic patient, if he or she were to cease being a forensic patient, poses an unacceptable risk of causing serious harm to others and that such a risk cannot be adequately managed by other less restrictive means: cl 2(1) of Sch 1 of the MHFP Act.
2. The phrases 'high degree of probability' and 'unacceptable risk' are not defined in the MHFP Act and, consequently, their meaning must be and has been ascertained by the courts. At this juncture, there is limited authority directly on the making of extension orders under cl 2 of Sch 1 of the MHFP Act.
3. Instead, the relevant authorities concern the meaning of the same phrases under the Crimes (High Risk Offenders) Act 2006 ("HRO Act"). The HRO Act empowers the Court to make continuing detention orders or extended supervision orders against high risk sex offenders and high risk violent offenders if satisfied to a high degree of probability that the offender poses an unacceptable risk of committing, respectively, a serious sex offence or serious violence offence: ss 5B(2), 5E(2) of the HRO Act. The relevance of the authorities on the meaning of these phrases in the HRO Act to cases concerning the same expressions under the MHFP Act has been confirmed in all earlier decisions in this matter: see Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [42]-[46]; Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [34]; Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [7]-[12].
4. The meaning of the expression 'high degree of probability' is not controversial. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court (Mason P, Giles and Hodgson JJA) held at [21] in relation to the meaning of that expression under the HRO Act that: "The expression 'a high degree of probability' indicates something 'beyond more probably than not', so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree that the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt."
5. It is now well settled that a high degree of probability is a standard of proof that is higher than the civil standard but lower than the criminal standard: see State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14] and Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27].
6. Unlike the meaning of high degree of probability, the meaning of unacceptable risk has been the subject of some judicial controversy. At present, there are two approaches to the meaning of the latter phrase.
7. The first approach is that the phrase 'unacceptable risk' is determined by its "everyday meaning, in the context of the provision in which [it] appear[s], and having regard to the objects of the Act", most particularly the primary object of the HRO Act, namely, to provide for extended supervision and continuing detention of serious sex offenders to ensure the safety and protection of the community: State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]; see also State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [19]-[20] per RA Hulme J. This approach has been endorsed, at least, by Hoeben CJ at CL in Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [44] and by Simpson J in State of New South Wales v Conway [2011] NSWSC 588 at [30].
8. The second approach is that the determination of an unacceptable risk involves a balancing exercise. In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276, which again concerned the meaning of unacceptable risk under the HRO Act, Davies J held at [90] that: "Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words 'a high degree of probability'. The second is the notion that 'unacceptable risk' involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. That is also because s 17(3) provides for the further assessment that if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk a supervision order will not be adequate to meet the risk." (Emphasis added).
9. In finding that unacceptable risk involves a balancing exercise, Davies J relied on two decisions of the Western Australian Court of Appeal, which concern the meaning of that phrase in Western Australian legislation that is equivalent to the HRO Act: the Dangerous Sexual Offenders Act 2006 (WA) ("DSO Act"). In the first decision, Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110, Wheeler JA held that: "In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention."
10. Meanwhile, in the second decision, Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149, after citing with approval the extract in Wheeler JA's judgment set out above, Steytler P and Buss JA stated at [27] that: "The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249 at 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case'".
11. In granting the first extension order in this case, Garling J adopted the second approach to the meaning of unacceptable risk. In his judgment, Garling J set out the above extracts of the Western Australian Court of Appeal and also considered the approach favoured by RA Hulme J in State of NSW v Thomas, in particular noting that the objects of the MHFP Act are not as straightforward as those of the HRO Act, since the former act does not establish a singular regime but applies to various types of mental disorders at various stages of the criminal justice system. His Honour then held that: "[57] Taking into account these authorities and the object of the provisions, and the words of Clause 2 of Sch 1 of the MHFP Act, it seems to me that the balancing exercise required involves the following integers. On one side of the ledger, the Court needs to consider and assess the nature and extent of the risk of Mr McGuire causing serious harm to others, the likelihood of that risk becoming an actuality, and the possible consequences of serious harm being caused to others upon the assumption that an extension order was not made and upon the assumption that, in the case of Mr McGuire, he is at liberty to live his life as he chooses. [58] On the other side of the ledger, the Court needs to assess and consider, having regard to the fact that, but for the making of an interim order Mr McGuire has completed the limiting term fixed by the District Court, Mr McGuire is not presently under any constraint on his liberty, and ought as a matter of the norms of a democratic society, be allowed to live his life in a way which enables him to exercise such liberty like any other member of society. [59] The exercise of balancing these two sides of the ledger, and considering the result, is to be done to further the relevant objects of the legislation namely, to protect the safety of the community generally. The exercise results in an evaluation of whether the risk is an acceptable one or not. In other words, notwithstanding that Mr McGuire has completed the punishment imposed on him by serving his limiting term, largely in custody, can the community be protected, not completely, but to an adequate or reasonable degree, if an order is not made?"
12. In my view, although not necessary to decide the matter, the second approach is to be preferred. In applying the unacceptable risk test the Court must consider a matrix of factors, specifically, the likelihood that the forensic patient will cause serious harm to others, the seriousness of that harm and the consequences for the forensic patient, namely, that his or her liberty will continue to be restrained. These factors clearly weigh the need for protection of the safety of members of the public, which is the primary purpose of the relevant part of the MHFP Act, against the effect of subjecting a person to an extension order.
13. The matrix of factors includes the probability or likelihood of serious offending and the outcome if offending were to occur. There is for all members of society some degree of risk, but once there is a high probability of risk in those, who have previously offended in a manner caught by the legislation, the legislature has prescribed that the order may be made. It is for the Court in the exercise of that discretion to balance that risk with the effect of the order.
14. In reaching my view, I have given significant weight to the views of the Western Australian Court of Appeal. As set out above, those views support an interpretation of unacceptable risk as involving a balancing exercise. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 at [135] the High Court explicitly commented that: "[I]ntermediate appellate courts and trial judges departing from decisions of intermediate appellate courts in another jurisdiction on the interpretation on Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong."
15. While the HRO and DSO Acts are not strictly part of national uniform legislation, the regimes they establish for extended supervision and continuing detention of high risk offenders, whether high risk sex and violent offenders or only high risk sex offenders, are very similar. At the centre of both statutes is the requirement that an extended supervision or continuing detention order may only be imposed when the court is satisfied to a high degree of probability that there is an unacceptable risk that the person will commit another sex or violent offence, if not subject to such an order: see s 5B(2) and s 5E(2) of the HRO Act and s 7(1)-(2) of the DSO Act. The matters which the Court must take into account in determining whether an unacceptable risk arises are also broadly the same, although in different terms: see s 9(3) and s 17(4) of the HRO Act and s 7(3) of the DSO Act.
16. Since the regime established by the DSO Act is very similar to that in the HRO Act, the decisions of the Western Australian Court of Appeal on the meaning of unacceptable risk carry, at least, significant weight: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd at [135]. Moreover, the fact that the meaning of unacceptable risk under the HRO Act was the same as that under the MHFP Act was undisputed by the parties before me and has been accepted by this Court in its previous judgments.
17. My view that determining whether, if not subject to an extension order, a forensic patient poses an unacceptable risk of causing serious harm to others involves a consideration of a matrix of factors is also based on the consistency of such a view with the concept of risk in other areas in the law. In New South Wales under the statutory regime for granting or refusing bail, an accused must be refused bail if there is an unacceptable risk that he or she will fail to appear at future proceedings, commit a serious offence, endanger the safety of the victims or the community, or interfere with witnesses or evidence: s 19(1)-(2) of the Bail Act 2013. In determining whether an unacceptable risk exists, the Court must consider a range of matters listed in s 18(1) of the Bail Act. Some of these matters, such as the nature and seriousness of the offence, are directed towards the offence that has allegedly been committed, while others are directed towards the needs of the accused, such as a special vulnerability of the accused.
18. As is evident from this cursory review of the Bail Act, what is an unacceptable risk under that statute involves a consideration of a matrix of factors. As Bell J stated in Woods v DPP [2014] VSC 1 in relation to the Victorian legislation on bail, which also utilises the concept of unacceptable risk, and as cited by Harrison J in R v Hawi [2014] NSWSC 837: "Consistently with the presumption of innocence and the prosecutorial onus of proof, it is the overall effect of the multiplicity of considerations in the individual facts and circumstances of the case which must be considered."
19. Furthermore, in the law of negligence the assessment of risk also requires consideration of a matrix of factors in response to a particular risk and, thereby, whether a defendant has breached their duty of care: see Mason CJ's judgment in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47. This matrix of factors is now embodied in s 5B(2) of the Civil Liability Act 2002.
20. Understanding unacceptable risk as involving a matrix of factors and the analogy with the law of negligence was accepted by McCallum J. The assessment of risk is relevant at various stages in the determination of negligence cases. Yet for present purposes I shall draw on the comments of McCallum J in State of New South Wales v Richard John Darrego [2011] NSWSC 360, in which her Honour stated at [9]-[10] that the approach to unacceptable risk in the HRO Act may be informed by the concept of material risk in medical negligence cases. In particular, McCallum J cited the judgment of Gummow J in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 in which his Honour held at [69] that the first question in determining whether a medical practitioner has failed to warn their patient of a material risk is to define the material risk "by reference to the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur".
21. I agree with McCallum J's proposition that the same approach to material risk in medical negligence cases can be applied to unacceptable risk under the HRO and MHFP Acts. Essentially, risk in these differing areas of law is to be assessed by a matrix of factors, such as the likelihood and magnitude of the risk and other factors previously mentioned. In order to promote cohesion in the law, it is, in my opinion, although not necessary to decide the matter, preferable that unacceptable risk is conceptualised as a matrix of factors, which accords with the requirements under the MHFP Act (see cl 7(2) of Sch 1 of the MHFP Act). That is the approach endorsed by the WA Supreme Court (supra).

Expert evidence

1. As previously stated, on 9 March 2015 Hoeben CJ at CL ordered that two qualified psychiatrists or psychologists, Professor Susan Hayes and Dr Andrew Ellis, be appointed to conduct separate examinations of the defendant and to furnish reports to the Court following those examinations.
2. Accordingly, before the Court are the report of Professor Hayes dated 26 March 2015 and the reports of Dr Ellis dated 30 March 2015, 8 May 2015 and 15 May 2015. Professor Hayes and Dr Ellis also gave evidence at the hearing.
3. The defendant attended the experts' professional premises for the purpose of the examinations. The defendant's examination with Professor Hayes lasted ninety minutes, during which time the defendant spoke "at length about many aspects of his present situation and past life" (Professor Hayes' report, p 19). Meanwhile, the examination with Dr Ellis lasted 30 minutes, after which time the defendant terminated the examination. It should also be noted that during the examination with Dr Ellis, the defendant made several "spontaneous" comments that objectified women.
4. I accept that the defendant established a better rapport with Professor Hayes. The experts agree, as a general proposition, that the better the rapport established between patient and doctor, the greater the information obtained from the patient and the greater the accuracy of the risk assessments.
5. At this juncture it is appropriate to outline the current circumstances of the defendant. The defendant lives alone in a unit in Panania. He receives visits five days per week from staff of New Horizons, a disability support service. Those visits have been part of the conditions for his release from detention since August 2013. The defendant is also required to take antilibidinal medication, as well as anti-craving medication to reduce his desire for alcohol. On the weekends, the defendant visits his sister's property where he works on fixing cars. Through his sister the defendant receives information about his daughter and grandson in Queensland, which is very important to him.
6. In the event that an extension order is not granted and the defendant's status as a forensic patient ceases, the defendant will not be compelled to take the aforementioned medication, to receive support from New Horizons and attend rehabilitative programs or to undergo tests for alcohol consumption. However, the defendant may continue to do each of these on a voluntary basis.
7. The experts largely agree on the diagnosis of the defendant. They agree that the defendant suffers from an intellectual disability and that this disability is chronic. They also agree that the defendant suffers from an alcohol use disorder, although his symptoms have been mild since being prohibited from consuming alcohol as a forensic patient. Finally, Professor Hayes considers that the defendant suffers from an antisocial personality disorder, while Dr Ellis considers that there is sufficient evidence of antisocial personality traits, if not an antisocial personality disorder. I accept that the defendant suffers from these three disorders.
8. The experts also agree that the defendant did not suffer from paraphilia, that is, any abnormal sexual desires.
9. The experts differ on the level of risk posed by the defendant. Professor Hayes believes that there is a low risk that the defendant will cause serious harm to others if he ceases to be a forensic patient, while Dr Ellis considers the risk to be moderate to high.
10. Professor Hayes conducted risk assessment tests on the defendant during her examination. She concluded in her report: "The results of the risk assessment instruments which evaluate static risk factors (that is, unchanging, historical factors) continue to rate his risk as moderate-high. However, the AEMIDILO-S, which is one of the new generation of risk assessment instruments assessing dynamic, static and protective factors, indicates a low level of risk. Care should be taken with terminology; 'risk of causing serious harm to others' is not synonymous with 'risk of re-offending'. Mr McGuire may re-offend by committing victimless crimes, for example, or he may re-offend against another person without causing them serious harm, such as through verbal abuse. In my view he is a low risk of causing serious harm to others." (Professor Hayes' report, p 21) As is evident from the foregoing passage, Professor Hayes bases her opinion on a preference for the AEMIDILO-S assessment, which measures dynamic risk factors related to the patient and their environment, such as the patient's motivation and response to treatment, in addition to stable risk factors, such as childhood abuse and past offences.
11. Meanwhile, Dr Ellis concluded that the defendant posed a moderate to high risk of causing serious harm to others. In his report Dr Ellis stated: "In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr. McGuire would still fall into a group of persons with a risk offending that is moderately high, and greater than a theoretical average offender. He has not had time to consistently demonstrate any potential gains he has made from interventions and personal development thus far. He would present with a risk profile equivalent to many forensic patients, or persons in the community managed by mental health or disability services. With his current management plan his risk is effectively managed, evidenced by remaining offence free to this point. There would be clinical grounds to continue intervention to manage this risk." (Dr Ellis' report dated 30 March 2015, p 11) The key consideration for Dr Ellis appears to be that insufficient time has passed for the defendant to show that the changes implemented following his supervision as a forensic patient are permanent.
12. The essential difference between the two experts was the subject of a question and answer during the examination of Dr Ellis. It is useful to set out the full exchange: "Q: Are you able to say why you think you came to some different conclusion from Prof Hayes? A: Without speaking for Prof Hayes, I think that I wasn't able to ascertain some changes in dynamic risk variable that Prof Hayes was able to ascertain during her interview, and I would have some concern that those changes in attitudes and motivations and future plans that he has were stable, solid and progressed across different domains of his life. So I think that's one issue. I think that my understating of risk of future violence is that generally it takes longer times to change rather than to drop dramatically. I think that my ratings, if I was to use something like the ARMIDILO, and I've used these tools more in the background of my assessment rather than scoring them in terms of each individual item, that I would be more hesitant to attribute risk reduction to changes in attitudes and changes in motivation and changes in insight than perhaps Prof Hayes was. I think that most of those instruments ask for it not just to be the person in the interview telling you that they're motivated but that there's evidence from other sources that motivation is present and sustained before you then attribute substantive reductions in risk to that. I would agree with the overall baseline risk that there's a baseline and historical risk, but what we know from the literature is that's the main contributor to future violence and not the dynamic variables. The dynamic variables do have an important role to play, but the main contributor is the historical pattern of behaviour, and that needs to be - so my assessment has taken that potentially more into account in forming that final conclusion." (Transcript, 27 May 2015, pages 45-46)
13. As is clear from the foregoing, Dr Ellis placed far less weight on the motivations and attitudes expressed by the defendant during his consultation. Unlike Professor Hayes, Dr Ellis remained uncertain about the level of insight the defendant has obtained on his alcohol disorder. He also expressed uncertainly as to whether the defendant would continue voluntarily with the services provided by New Horizons and with the other conditions. Furthermore, Dr Ellis considered that the defendant's relationship with his family was not yet stable enough to be considered a "protective factor", but more likely represented an "absence of a risk factor".
14. In the event that an extension order is granted, the experts also disagree as to the duration of that order. Professor Hayes states that an extension order should not be imposed for longer than twelve months, whereas Dr Ellis believes that a two year extension is necessary to "engage with Mr. McGuire around future planning and motivation to adhere to rehabilitation efforts" (Dr Ellis' report dated 8 May 2015, p 2).

Other evidence

1. The other evidence before the Court, upon which counsel relied during the course of submissions, consists of the monthly reports and daily progress notes by New Horizons, the letters from New Horizons to the Tribunal before a hearing concerning the defendant, the Tribunal's decisions and reports by another psychologist/psychiatrist, Dr Seilder, who has treated the defendant on several occasions.
2. There is no need to set out in detail the evidence which was before the Court. However, I shall set out a description from the April 2015 report by New Horizons of an incident which was the subject of questions to Professor Hayes and of submissions before the Court. The incident occurred while the defendant was collecting scrap metal, a task which he regularly undertakes in the company of the New Horizons staff. It is described in the report as follows: "Herbert made inappropriate comments to staff when he had an interaction with a young lady whilst collecting scrap. He said he would like it if she would pay for his time so he could have sex with her. He also commented that he presumed that the lady had a dildo for self-pleasure. When he was told the comment was inappropriate, Herbert said he knew staff wrote up reports about what he spoke about." (JM1, p 179)

Consideration

1. As is obvious from earlier comments, there is a slight conflict between the experts as to the defendant's probability of offending. The difference, however, is less than might at first appear.
2. Each expert accepts that in the absence of the current medication, the risk posed by the defendant rises significantly. The fundamental question is whether the defendant's insight into his alcohol issues and sex offending is sufficient to remove the supervision and the requirements for medication and allow the defendant the freedom to undertake the medication himself.
3. As has been described, the restrictions on the defendant are not draconian. They involve supervision by Corrective Services and the requirement for medication. The defendant lives in the community. The medication is needed to ameliorate the otherwise significant risk.
4. The cited comment to staff displays an attitude that is concerning, all the more so for its disclosed lack of insight. The defendant's relationship with his family has not yet fully stabilised. That relationship has some important stabilising features, but is not sufficiently stable to affect positively the likelihood that the medication will be taken voluntarily and, in that way, improve the risk factors otherwise associated with the defendant's mental state and previous behaviour.
5. On the other hand, there is no doubt there has been some improvement in the defendant. That improvement should continue into the foreseeable future and will, one would expect, result in less risk over the forthcoming period. Given the levels of improvement and the likelihood that the rate of improvement will remain static, if not increase, a shorter rather than longer period of operation for the order is appropriate, so that the unacceptability of the risk of the defendant can be ascertained at shorter intervals.
6. Currently, the risk is unacceptable. That is the determination I had made for the reasons set forth in these reasons for judgment. It is for the foregoing reasons that I issued the orders on 10 June 2015.

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