Attorney-General of New South Wales v Ramirez

Supreme Court of NSW|2018-04-12|Before: Lonergan J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2018/67942

Judgment

The Plaintiff filed a Summons on 1 March 2018 seeking orders pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the MHFP Act") to appoint two qualified psychiatrists to examine the Defendant and to furnish reports for the Court's assistance and an interim extension order commencing on 8 July 2018 for a period of 28 days.
The primary order sought is for 3 years of extended supervision. The Plaintiff argues that the Defendant's intractable mental illness, conduct shown in the index offence and other background issues place him as posing an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.
The Defendant opposes the application, arguing the threshold requirements have not been met.
I have formed the view that the threshold requirements have been met and that I should at this stage make the order sought for psychiatric examinations. These are my reasons for that decision.

Legislative structure and relevant provisions

The MHFP Act s 54A and Schedule 1, cl 1 provides the jurisdiction and the power to extend the Defendant's status as a forensic patient: 54A Extension of status as forensic patient A person's status as a forensic patient may be extended in accordance with Schedule 1. Schedule 1 Extension of status as forensic patient 1 Extension orders for forensic patients (1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient. (2) An order made under this clause is an extension order.
Clause 2 sets out the matters of which the Court must be satisfied before an extension order could be granted: (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others. Note. Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.
The objects of the Act are set out in s 40 as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care.
The terms "high degree of probability" and "unacceptable risk" have been dealt with in a number of the authorities dealing with the High Risk Offenders legislation. In Cornwall v Attorney-General of New South Wales [2007] NSWCA 374 at [21], the Court of Appeal observed at [21]: "The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt."
The judgment of the New South Wales Court of Appeal in Attorney-General of New South Wales v Tillman (2007) 70 NSWLR 448; [2007] NSWCA 119 makes it clear however that the criteria does not require a degree of probability exceeding 50 per cent.
The satisfaction to a high degree of probability is something that I have to find in respect of both questions that I need to consider in deciding whether to make an extension order. That is, I need to be satisfied to a high degree of probability that there is an unacceptable risk of causing serious harm to others if the Defendant ceases to be a forensic patient, and there is a high degree of probability that the risk cannot be adequately managed by less restrictive means.
The term "unacceptable risk" has been dealt with in varying ways by this Court and the Court of Appeal in the context of the High Risk Offender legislation, however I adopt the approach of Davies J in Attorney-General of New South Wales v Keropa [2017] NSWSC 411, where his Honour observed that the MHFP Act has a wider reach than the Crimes (High Risk Offenders) Act 2006 (NSW), and that the unacceptable risk being guarded against here is simply "serious harm", as opposed to the commission of a particular type of serious offence of a sexual or violent nature (see [12] and [14]). I accept, as stated by Davies J (at [19]) that there is no reason in principle why "serious harm" would not include at least psychological harm.
This was a view with which R A Hulme J agreed in Attorney-General of New South Wales v Keropa (No 2) [2017] NSWSC 928 at [16] that "[serious harm] may concern physical or psychological harm", and "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 agree with R A Hulme J's view that the legislation "contemplates something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law" and "that psychological harm must be something more than emotions such as fear or panic. Such things are not 'serious harm'".
The requirements of cl 2 are discretionary, providing that a forensic patient can be made the subject of an extension order. The power does not necessitate the order being made.
Clause 7(2) sets out the factors that are necessary to consider: 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.
For the purposes of the orders sought at this preliminary hearing stage, clause 6(4) requires this Court (within 28 days or within such further time as the Court allows) to conduct a preliminary hearing into the application, and if at that hearing the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must make orders appointing two qualified psychiatrists or psychologists to conduct examinations and furnish reports (cl 6(5)).
If the limiting term to which a forensic patient is subject will expire before proceedings are determined, the Court may make an interim extension order if satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order (cl 10).

The Defendant's background and criminal history

The Defendant is 34 years old and was born in Young in Central New South Wales. He is of Aboriginal descent, has one full-blood sister and ten half-siblings. He was diagnosed at age 16 with schizoaffective disorder. Prior to his current incarceration it is reported that he was homeless. He was unwell and was admitted to the PECC Unit at Liverpool Hospital where the index offences took place.
Currently, he is housed at the Bronte Unit at the Forensic Hospital in Malabar and has been there since 6 December 2017 having previously spent his time at Concord Centre for Mental Health from shortly after the time of his arrest for the index offences.
The Defendant has a long record of criminal offending, none of which would amount to "serious harm", save for the index offences. The offending was referred to in Graham ADCJ's remarks on sentence in September 2016. Graham ADCJ noted that this previous offending had been dealt with by way of bonds associated with treatment and supervision or dealt with pursuant to s 33 of the Mental Health Act 2007 (NSW) ("the MHA"). The offending comprises assault in 2000 where the Defendant (aged 17) punched two male victims on the street in Dubbo. There were some failures to appear and warrants issued. In 2004 he was charged with possess prohibited drug and custody of a knife in a public place. In 2005 he was charged with assault occasioning actual bodily harm, maliciously destroy or damage property, and fail to appear in accordance with bail undertaking. This series of charges involved the Defendant punching his girlfriend in the mouth and splitting her lip at a time when she was three months pregnant with their child. In 2005 there was an unlicensed driving offence and driving under the influence of alcohol. There was also a contravene ADVO in 2005 and 2006. There were later some larceny, shoplifting and other possession charges over the following 10 years.

Sentencing remarks - September 2016 index offences

Graham ADCJ observed that whilst the sexual offences committed in 2014 were degrading and serious, the offending represented "a single episode of assault over a relatively short time which was opportunistic, not planned, and not worsened by gratuitous violence or threats".
The sentencing judge also stated that while the Defendant was not able to rely on a defence of mental illness, "…his actual state of mental illness, and his psychotic state at the time, meant that his judgment was impaired, and while he may have realised that what he was doing was wrong, that realisation was a clouded one, impaired by the symptoms of his mental illness. In those circumstances his moral culpability should be seen as being significantly reduced."

Evidence relied upon by the Plaintiff addressing clause 7(2) factors

The Plaintiff relied on two affidavits of James Loosley, affirmed 1 March 2018 and 14 March 2018 respectively. The first affidavit was accompanied by two volumes of material regarding the Defendant which included his criminal history, transcripts of the hearings regarding the index offences which occurred on 20 June 2014, various Mental Health Tribunal determinations and orders, sentencing remarks and orders in December 2016 regarding the index offence and some clinical records.
I accept that the requirements of the MHFP Act have been met in terms of notice, the provision of a risk assessment report (Dr Chew, Forensic Psychiatrist) and relevant notification to the Defendant.

(i) Dr Chew's November 2017 report

Dr Chew reviewed the Defendant on 17 November 2017 at the MRRC. He described that it "became apparent within a few minutes of interview that the Defendant displayed ongoing features of active psychosis".
Importantly, Dr Chew noted that the Defendant denied the index offence, saying it was consensual, and saying that all women were attracted to him. He spoke of grandiose themes including winning a sword as a martial arts champion, having millions of dollars hidden away, being a famous dancer for Michael Jackson (amongst others) and being a famous soccer player. He said he had multiple children, which Dr Chew notes was not confirmed by collateral information.
Dr Chew concluded that there was: "… a long history of chronic psychotic illness characterised by multiple involuntary psychiatric inpatient admissions and involuntary community treatment." and said that the illness appeared to have been exacerbated over the years by significant substance misuse, although he does not set out the reasons for reaching this particular conclusion, or the information upon which he has based the substance misuse conclusion other than that the Defendant admitting to having used ice and cannabis previously.
Dr Chew noted a history of absconding from hospital and breaches of court orders and that the Defendant has active symptoms of mental illness and lack of insight, and his illness is treatment resistant although he is compliant with medication in custody.
Dr Chew concluded that there was a chronic psychotic disorder with grandiose delusions and thought disorder, with a primary psychiatric diagnosis of schizoaffective disorder. He said that the schizoaffective disorder, and in particular the active psychosis, is the major dynamic risk factor for reoffending along with substance misuse, concluding: "30 I think that Mr Ramirez poses a risk of causing serious harm to others if he does not receive ongoing intensive psychiatric support, treatment and rehabilitation. I think that this care is best managed, at least initially, in the forensic psychiatric system. For this reason it is my opinion that he should remain a forensic patient. I opine this because while the forensic system can manage patients on "civil" mental health orders, I think that there is additional utility in mandating MHRT forensic review in decision making as he progresses in the forensic psychiatric pathway. Additionally, I note that the index offences occurred in a civil psychiatric unit and that he has absconded previously in 2014 from a civil rehabilitation unit at Bloomfield lending weight that at least initially his rehabilitation pathway should involve the forensic psychiatric system. 31 Mr Ramirez's risk should diminish over time with continued treatment and forensic psychiatric rehabilitation. In particular the focus should be on treating his Schizoaffective Disorder and maintaining abstinence from illicit drugs. Should this occur, his risk will diminish over time along with his likelihood of reoffending."

(ii) Dr Chew's supplementary report of March 2018

Dr Chew provided an additional report dated 9 March 2018 which did not involve a further interview with the Defendant but referred to some other material being briefed which has, according to Dr Chew, "in general terms reinforced my previous opinion".
Dr Chew was asked what impact, if any, the Defendant's reported denial of the index offences has on his level of risk. Dr Chew said that it continues to increase his level of risk, but that the denial is predominantly linked to ongoing mental illness: "In particular he remains grandiose in his abilities, wealth and attractiveness to women. This, in my view relates directly to his denial of the consensual aspects of the offences. He does not deny that sexual activity occurred; he denies that it was not consensual."
Dr Chew goes on to address within the HCR-20 framework the risk for violence and concluded that there are limits on such testing, saying that they are widely thought to be inferior overall to SPJ methods. Dr Chew concluded that utilising the Static-99, the Defendant would "place in the low to moderate risk category".
The question posed regarding the level of risk the Defendant presents of causing harm to others or himself if he ceases being a forensic patient was answered in this way: "It is my view that Mr Ramirez poses a risk of harm, particularly to others, should he not continue to be managed in the forensic system at this stage. He remains psychotic with poor insight and evidence of sexual disinhibition on the acute ward. I think that he requires the usual Forensic Patient pathway- a period stepping through in a graded fashion the rehabilitation wards at the hospital and the medium secure unit system. A significant factor in my recommendation is that the index incident occurred in a civil psychiatric unit. a. It is therefore my opinion that continuation of his forensic patient status is the preferred option as reasoned above. b. Involuntary patient under MHA 2007 is the next best option however in my view may lead Mr Ramirez to 'fall between the cracks', particularly as forensic beds are prioritised for forensic patients over civil patients."
Dr Chew also concluded that a community treatment order ("CTO") is likely to be ineffective at this stage, that a financial management order remains appropriate, and stated: "Unfortunately I do not think that there is currently a less restrictive means of managing Mr Ramirez."

(iii) Other relevant expert reports

There are other reports from qualified practitioners relied upon by the Plaintiff dating from 2003 to 2017. Those reports are broadly similar to the diagnoses and comments of Dr Chew in relation to the intractability of the Defendant's condition despite treatment, non-compliance in the past including drug abuse at different times including Ritalin, heroin and cocaine, complications with bail undertakings and compliance, some alcohol abuse, and "grandiose and sometimes bizarre beliefs".
More recently, Dr White, Psychiatrist, in March 2017, referred to difficulties with side-effects from medication including dystonia, and described the Defendant's schizoaffective disorder as "severe and clozapine resistant".
The Mental Health Review Tribunal records indicate in May 2015 difficulty titrating the clozapine and that in 2016, there had been little observable improvement whilst on the clozapine. The Tribunal determined that the Defendant should be transferred to the Forensic Hospital no later than 16 February 2018 to allow a period of approximately 6 months before the expiration of his limiting term to assess his rehabilitation needs and options within a forensic mental health facility setting.
It was suggested by Dr White that if there was further treatment needed at the end of the Defendant's limiting term, his needs could be safely managed as an involuntary patient under the MHA.
The records relied upon by the Plaintiff show that there have been some issues regarding compliance with obligations while a forensic patient, in particular, failing to complete any programs including the Custody Based Intensive Treatment (CUBIT) program to reduce sex offending, although, as (properly) conceded by counsel for the Plaintiff, the Defendant may not be suitable for this program due to his mental illness.

(iv) Other relevant documented incidents

There have been reports of sexually inappropriate behaviour. It appears from the documents relied upon by the Plaintiff that these are in the nature of exhibitionism and sexual comment. There is no aggression associated with this behaviour. In broad terms, the sexualised behaviour seems to comprise touching staff on the shoulder and arm, wearing shorts that reveal his genitals, sexual innuendo and tactile behaviour, and sexually suggestive behaviour towards a particular person or persons (unspecified). The Defendant is however being managed by professionals in a protected environment.
There is potential relevance to an event in March 2005 where the Defendant is reported to have made sexual remarks to a 13 year old niece, but nothing specific is provided about that incident. It has been observed by a number of mental health professionals in the past, as well as recently, that the Defendant continues to believe that women are attracted to him and that "women can't leave him alone".
It is uncontentious that there have been a number of failures to appear and contraventions of ADVOs, particularly in the mid-2000s. The Defendant has some convictions in his absence for shoplifting and goods in custody in 2013.

Submissions

I received helpful and detailed written submissions from both counsel. I was also assisted by oral argument. Counsel for the Plaintiff emphasised the need to evaluate the question of unacceptable risk of causing serious harm in light of the Defendant's past conduct, the likelihood of him reoffending, and the gravity of such potential reoffending. It was submitted that I must bear in mind the need to secure the community from harm from the Defendant and that this needs to be considered in light of release into the community leading to an absence of the type of protective measures that are currently in place to assist him. His risk must be considered on the basis of the Defendant living unsupervised in the community with arguably intermittent potential operation of the MHA, as opposed to the regime available under the MHFP Act, which includes the supervision of the Mental Health Review Tribunal.
The submissions of counsel for the Defendant emphasised that given the requirement to consider the less restrictive means, which were argued to still permit an appropriate level of care, treatment and control necessary to adequately manage the risks posed by the Defendant - I should read Dr Chew's opinion to be a reference to a "preferred" or "ideal" option for care of the Defendant as opposed to the level of care necessary to address the risks.
There was careful evaluative focus on the assertion that the same care can be provided to the Defendant whether he was an involuntary patient under the MHA or a forensic patient under the MHFP Act. It was also emphasised that there is no evidence that the Defendant's care at the forensic hospital where he currently resides would change as a result of his status changing. There are various mechanisms in the MHA that would provide support in the community for the Defendant.
A table was provided in the Defendant's written submissions in support of a submission that similar assistance and management would be provided under the MHA as was provided under the MHFP Act, addressing issues of patient review, leave, apprehension by police, consequences of apprehension, enforcement, discharge, transfer and ongoing treatment.

Decision

Whilst the analyses provided by counsel for the Defendant are important and may carry some weight at final hearing combined with other evidence that may be led at that time, I am required at this stage to assess the application on the basis that the matters asserted in the supporting material have been proved, and that entails accepting Dr Chew's opinion.
It is true that the words "preferred option" are used by Dr Chew in his concluding paragraph, and he goes on to describe involuntary patient status under MHA 2007 as the "next best option", but he also says that this latter option may lead to the Defendant "falling between the cracks, particularly as forensic beds are generally prioritised to forensic patients over civil patients". In the beginning of this concluding paragraph, Dr Chew makes it clear that he considers the Defendant poses a risk of harm, particularly to others, if not managed in the forensic system, citing the Defendant's psychosis, poor insight and evidence of sexual disinhibition in the Acute Ward as bases for this overall view. This conclusion should also be read in light of Dr Chew's conclusion in his earlier report set out in paragraph [31] of this judgment.
The issue is perhaps made a little more complex by the opinion expressed by Dr White in 2017 that the Defendant "could be safely managed as an involuntary patient under the Mental Health Act 2007", but I accept that the mechanics of that legislation, and in particular the principles that underpin it, mandate the least restrictive form of care and release from care if the person no longer fits the definition of mentally ill or mentally disordered. This seems to me to provide an obvious basis for Dr Chew's concern that the Defendant could "fall between the cracks" if released from his forensic patient status.
Adamson J in Attorney-General of New South Wales v Doolan (No 2) [2016] NSWSC 107 conducted a detailed analysis of the contrasting regimes provided by the MHA the MHFP Act. I adopt the helpful summary of Beech-Jones J in his decision in Minister for Health v Paciocco [2016] NSWSC 1530 at [60]-[65]: "…the Court has the benefit of the detailed analysis undertaken by Adamson J in …'Doolan No 2'… at [96ff] in which her Honour compared and contrasted the regimes for the treatment of mentally ill people under the MHFP Act compared with the MHA. For present purposes, four particular differences should be noted. The first is that her Honour noted that a forensic patient is to remain in detention, including in a mental health facility or correctional facility or other place, unless the criteria for release in s 43(a) of the MHFP Act, which includes concerns about the safety of the members of the public not being seriously endangered, are met. With an involuntary patient, that person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered (Doolan No 2 at [109] to [110]). The second difference relates to release. Her Honour noted that with a forensic patient the Tribunal may not release them without an independent expert risk assessment report which addresses whether any member of the public will be seriously endangered, whereas with an involuntary patient an authorised medical officer must inform the Tribunal of their discharge as soon as reasonably practical if they consider that the patient is not mentally ill (Doolan No 2 at [111] to [112]). The third matter concerns the imposition of conditions while the patient is living in the community. Section 75 of the MHFP Act empowers the Tribunal to impose conditions across a broad range of matters when it orders the release of a forensic patient. In respect of involuntary patients who become subject to community treatment orders, their purpose is to require the patient 'to receive the medication and therapy, counselling management, rehabilitation and other services provided in accordance with the treatment plan' (Doolan No 2 at [115]). The fourth matter concerns breaches of conditions. Her Honour stated that forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall. Her Honour contrasted that with involuntary patients who have been released where the responsibility of overseeing community treatment rests with the patient and the Director of community treatment (Doolan No 2 at [117] to [118]). Broadly, her Honour also noted (at [121]) that '[g]enerally speaking the onus in the [MHFP Act] is in favour of greater restrictions on a forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted.' Her Honour then stated that '[b]y contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that the restriction is warranted."
These differences have critical relevance to the issue of risk posed by the Defendant given his diagnosis and the delusions from which he suffers and how they may manifest if he ceases to be a forensic patient.
Whilst there is no criminal record of other sexual offending, the index offences are serious and show an element of aggression and disinhibition linked to the Defendant's mental illness and psychosis. Recent verbal and other behavioural indications tend to show a delusional belief on the part of the Defendant that all women find him irresistible and/or highly attractive. His lack of insight into the non-consensual aspect of his sexual assault on the victim of the index offence demonstrates the potential risk of a similar lack of understanding occurring again in circumstances where the Defendant may interpret the potential for sexual engagement as consensual when it is not. Such circumstances qualify, in my opinion, as a risk of serious harm.
Given the intractable nature of the Defendant's condition and its resistance to treatment as set out in the supporting documentation, I am satisfied that the matters alleged in the supporting documentation, if proved, are capable of demonstrating to a high degree of probability that the risk posed by the Defendant cannot be adequately managed by other less restrictive means, that is means other than the continuation of his status as a forensic patient.
It follows that I am obliged to make the orders sought in paragraph 1 of the Summons - the examination of the Defendant by two qualified psychiatrists.
At this stage, I refrain from making order 2 sought in the Summons, being the interim extension order, given that there is still available a period of almost 2 months before the limiting term ends on 8 July 2018.
In making my assessment, I have had regard to the criteria in s 7(2), and specifically the safety of the community and the various reports that have been provided on this application. I have carefully considered the well-structured and intelligent submissions put forward by counsel for the Defendant, but nevertheless consider the order is justified.
Accordingly, I make order 1 in the Summons as follows: Pursuant to cl 6(5) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW): 1. Appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the Defendant to attend those examinations.
I will grant such other orders as the parties consider appropriate for further management of the matter to final hearing and to accommodate the parties' estimate of the time required for that final hearing.
Regardless of those additional orders, I list the matter for mention before me at 9am on 29 June 2018 in order to secure an occasion at which, if required, order 2 in the Summons can be made, should the matter not be determined prior to that date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2018

Mental Health (Forensic Provisions) Act 1990(NSW)ss 40, 42, 54A, Sch

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