Attorney General of New South Wales v Ramirez

Supreme Court of NSW|2024-10-15|Before: Hulme AJ

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2024/00321529

JUDGMENT

The Attorney General of New South Wales seeks interim orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for the appointment of two mental health experts to examine Mr James Ramirez and provide the Court with reports and for an extension of the status of Mr Ramirez as a forensic patient for a further three months from its present expiration date of 28 December 2024.
Mr Ramirez has a mental illness, Schizoaffective Disorder, which is chronic and treatment resistant. He also has a neurocognitive disorder with significant cognitive impairment. His intellectual functioning has been assessed as being within the Extremely Low range. [1] He is incapable of managing his affairs and a tutor has been appointed.
He is a forensic patient under the Act and thereby subject to the jurisdiction of the Mental Health Review Tribunal because he was the subject of limiting terms of imprisonment in respect of serious sexual assault offences and subsequently subject to orders extending his status as a forensic patient.
The response to the plaintiff's application is neutral. The defendant neither opposes nor concedes it but accepts that the material relied upon by the plaintiff is sufficient to allow for the order of appointment of experts and justifies the making of an interim extension order.

Legislative requirements

There is no dispute that all the necessary legislative requirements for the bringing of the application have been complied with and that the Court has jurisdiction to make the orders sought.
The order relating to the appointment of experts to provide reports must be made if the Court is satisfied "that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order" (s 126(5)).
An extension order can only be made if the Court, after considering each matter listed in s 127(2) and anything else it considers to be relevant, is "satisfied to a high degree of probability that (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means (s 122 (1)).
An interim extension order may be made if it appears "the existing extension order will expire before the proceedings are determined" and "that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order" (s 130).

Background

Mr Ramirez was born in 1984 and is currently aged 40. He committed three offences of sexual intercourse without consent and one of indecent assault against a fellow inpatient at Liverpool Hospital on 20 June 2014. He was at the hospital to receive treatment for mental health issues. While he had a rather lengthy criminal history, this offending was of a nature and seriousness unlike anything in the past.
He was found unfit to be tried on 19 March 2015 in the District Court at Parramatta and thereby became a "forensic patient" pursuant to ss 14 and 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed) and was referred to the Tribunal. After it was determined that he would not become fit to be tried within 12 months, a special hearing was held in the District Court at Campbelltown where Graham ADCJ found "on the limited evidence available" he committed the four offences.
On 2 September 2016, his Honour nominated four concurrent limiting terms of varying length, the longest being for four years. They were specified to commence on 9 July 2014 and the last expired on 8 July 2018. The status of Mr Ramirez as a forensic patient continued for the period of the limiting terms by virtue of ss 24(1) and 42 and he remained under the control of the Tribunal.
The plaintiff commenced proceedings under the Mental Health (Forensic Provisions) Act on 1 March 2018 seeking orders extending the status of Mr Ramirez as a forensic patient beyond the expiration of the limiting terms. Lonergan J made interim extension orders to that effect until she made a final extension order on 28 September 2018 whereby he continued to be a forensic patient for four years commencing on 30 September 2018.
On 11 May 2022 the plaintiff again commenced proceedings for an extension of the status of Mr Ramirez as a forensic patient. By this time the applicable legislation had become the Mental Health and Cognitive Impairment Forensic Provisions Act. On 19 September 2022, Harrison J (as his Honour then was) made an interim extension order commencing 30 September 2022 and concluding 29 December 2022. On 23 December 2022, McNaughton J made a final extension order extending the status as a forensic patient for two years, ending on 28 December 2024.

Background of Mr Ramirez and assessments of risk up to 2022

There are ample summaries in the earlier judgments of Mr Ramirez's personal circumstances, his mental health and intellectual capacity, and assessments in 2018 and 2022 of the risk of causing serious harm to others he posed if he ceased to be a forensic patient. There is no useful purpose served by repeating all of that in this judgment. Regard should be had to Attorney-General of New South Wales v Ramirez [2018] NSWSC 662 at [5]-[7], [23]-[47] (Lonergan J); Attorney-General of New South Wales v Ramirez (No 4) (Final Orders) [2018] NSWSC 1466 at [16]-[57] (Lonergan J); Attorney General of New South Wales v Ramirez [2022] NSWSC 1241 at [3], [14]-[28] (Harrison J); and Attorney General of New South Wales v Ramirez (by his tutor Johnson) (Final) [2022] NSWSC 1776 at [5], [35]-[98] (McNaughton J).
It is pertinent to note the reasons provided by McNaughton J (at [104]) for concluding that a further extension order for a period of 2 years should be made: 1. The experts agree that Mr Ramirez has Schizoaffective Disorder, Severe Substance Use Disorder (in remission) and Borderline Intellectual Function or Neurocognitive Disorder. 2. The court-appointed experts agree that Mr Ramirez poses at least a "medium to high" or "moderate to high" risk of causing serious harm to others based on his presentation, history and assessment if he ceases to be a forensic patient. 3. There is a recorded history of absconding, as well as non-compliance with treatment and previous CTOs. 4. Mr Ramirez shows limited understanding of his diagnosis, his symptoms and his need for treatment. He does not have insight into his violence risk, his Substance Use Disorder, his Neurocognitive Disorder nor his medical conditions. 5. All the experts were of the view, and I accept, that it would be appropriate to manage Mr Ramirez' risk of causing serious harm to others by continuation of his forensic patient status as this would allow him to access appropriate specialist forensic mental health care for his conditions and would allow a gradual step-down to community care. An extension order would allow for continued care at Bloomfield, a forensic specialist unit; continued forensic rehabilitation including access to study and employment programs; further neuropsychological testing if appropriate; occupational therapy assessment; referral for placement in appropriate accommodation (likely NDIS supported accommodation); referral to appropriate community mental health support; and assistance with family contact. 6. An extension order of 2 years would be appropriate to allow for the gradual step-down to community care to occur (including the finding of appropriate accommodation), with appropriate supervision at every progression point.

Events and assessments since 2022

Since coming into custody on 9 July 2014 Mr Ramirez had been held at the Metropolitan Remand and Reception Centre and Long Bay Hospital (both correctional centres) and then the Forensic Hospital (a mental health facility) from 6 December 2017. He was transferred to Bloomfield Hospital (another mental health facility) on 15 September 2022 where escorted day leave would be available. [2]
The Tribunal reviewed Mr Ramirez on 23 February 2023. It ordered he remain at Bloomfield Hospital for care and treatment but granted a request by his treating team that he be allowed unsupervised day leave at the discretion of the Medical Superintendent. The Tribunal was satisfied that the safety of Mr Ramirez and any other member of the public would not be seriously endangered (a threshold statutory requirement of s 84(2) of the Act before the Tribunal may make any release order). Such leave would involve the presence of NDIS support workers and would provide the treating team the opportunity to monitor him as he progressed to unsupervised leave. [3]
On 27 June 2023 the Tribunal granted a request by the treating team for Mr Ramirez to be permitted supervised overnight leave seven nights per week to supported independent living accommodation. [4]
The Tribunal ordered the discharge of Mr Ramirez from Bloomfield on 16 November 2023 with an extensive suite of conditions concerned with treatment and supervision. The conditions were modified at the Tribunal's six-monthly review on 24 May 2024 but only to reflect changes in his treating psychiatrist and case manager. [5]
The NSW Trustee and Guardian has managed finances for Mr Ramirez since 2010 and was appointed his guardian for a period of 2 years on 30 November 2023. [6] A National Disability Insurance Scheme plan was approved on 6 March 2024 and is to be reassessed by 6 March 2025. [7] There was an "interim behaviour support plan" put in place in February 2024 which included a requirement for line of sight supervision at all times in the community. It was to be reviewed in August 2024 but there is no evidence of what became of it. [8]
There is a Risk Assessment Report by Dr Amanda White, forensic psychologist and clinical neuropsychologist, dated 25 March 2024. In her opinion, Mr Ramirez poses a risk of causing serious harm to others if his status as a forensic patient is terminated.
In discussing the index offences, Mr Ramirez told Dr White that the sexual activity was consensual and the only wrongdoing was that it did not occur in a private location. [9]
Dr White noted a mental health review in November 2023 in which it was recommended that he access a "psychosexual counsellor focussing on consent" but nothing appears to have been achieved in that respect. [10] She recounted observations by his treating team of his behaviour during community outings and what Mr Ramirez had told her: [11] In public, he offered that he does not stare at women but does "have a geez" and is currently "hiding" his sexual interest which is "a bit stressful". He said workers would direct him not to look at women, but he was unsure why. He said he could not see any issue with "having a look" and went on to say he thought the workers were "trying to protect me" but felt he did not need protection; he knew what he did previously was wrong and would not do again, next time going to a private location to have sex. He said he had "lots" of women in public who were attracted to him, and showed interest in him, (which he explained was smiling at him) and said that often these were younger females. … There are ongoing reports that he can "appear to be transfixed on females in public at which times he would engage in intense staring which could appear intimidating" and to date has been manageable with direct intervention and redirection from staff, although during recent incident in February 2024 he was noted to continually return to the pharmacy counter to look at a female, and ignored attempts to redirect and was agitated by same. It has been reported that he has "become challenging when out in the community where he is more dismissive toward staff when they redirect around [his] clothing (often wears revealing clothing)". … His support worker said that when in the community Mr Ramirez was increasingly commenting on females' backsides, and that the workers had to remind him not to do so. He reportedly winks at females only and stares at them in public. When at home he predominantly watched shows with sexual themes and inuendo, and 'sexy' music videos. Mr Ramirez recently commenced dance lessons. He reportedly liked to "show off" and try to get the female dance instructor's attention, would make "excuses" to talk to the women and be close to them. He has reportedly attempted to hug them and find opportunity to engage in and extend physical contact with the females, such as touching, stroking. Staff are alert to and managing same, and have repeatedly told him not to engage in this behaviour.
A "Joint Memorandum of Facts and Issues" helpfully includes the following summary of Dr White's findings on matters pertinent to the risk of Mr Ramirez causing serious harm to others: Assessment Tools 41. Using the STATIC-99R actuarial risk assessment tool, Dr White assessed the Defendant as being in the 'Above Average Risk' category for sexual reoffending. 42. On the STABLE-2007, Dr White assessed the Defendant as having a 'Moderate' density of criminogenic needs. 43. Combining results of the STATIC-99R and STABLE 2007, the Defendant's score remained in the Level IVA, 'Above Average risk' category. 44. Regarding dynamic risk on the RSVP-V2, Dr White identified the following factors as the most salient in terms of the Defendant's risk for future sexual violence: chronicity of sexual violence, problems with denial of sexual violence, problems with self-awareness, problems with stress and coping, major mental disorder (schizoaffective disorder and cognitive impairment), problems with substance use, problems with intimate and non-intimate relationships and problems with employment. 45. Additional factors specific to risk of aggressive behaviour as identified on the Historical Clinical Risk Management-20 Version 3 (HCR-20), which assesses an individual's future risk of violence, included: impaired insight, instability, lack of personal supports, and other antisocial behaviour commencing late adolescence and childhood. Risk of Harm 46. Dr White concluded that the Defendant does pose a risk of causing serious harm to others if he ceases to be a forensic patient, most likely sexual harm. Dr White opined that since the last extension order was made, his overall presentation and clinical risk factors remain largely unchanged. 47. Dr White concluded that with a high level of support, supervision and intervention, the Defendant's risk of causing serious harm to others is assessed to be low. However, in Dr White's view, his sexual behaviour is prevented from reaching the level of serious harm due to immediate intervention by his support workers. 48. Dr White notes that the Defendant's transition to the community has been carefully and slowly managed with a high level of support. However, even in this context the Defendant displays poor internal capacity to exhibit sexual behaviours and control his urges and impulses.
Dr White described the risk scenarios as follows: [12] Risk scenarios for sexual violence are most likely to occur in the context of inadequate or unstable supervision and formal supports, deterioration in mental health (which may be associated with medication-noncompliance) and interpersonal stress. Offending is likely to be opportunistic, impulsive, and unplanned and involve adult females, but especially vulnerable females who are in regular or close physical proximity and care settings where there is a potential deficit in supervision. Offending is likely to involve contact sexual offences, which may include sexual intercourse without consent. Victims are more likely to be unknown to him. Regarding risk of physical violence, in addition to abovementioned contextual factors, this appears more likely to occur in the context of substance use, possibly in company of other persons who are negative influencers, and may be random and involve strangers, or it may occur in the context of intimate relationships (Intimate Partner Violence: IPV).
As to the level of risk if Mr Ramirez ceased to be a forensic patient and whether the risk can be managed by less restrictive means, the Joint Memorandum provides the following summary of Dr White's opinion Management 49. In Dr White's view, if supports available to the Defendant by virtue of his forensic patient status are removed, his risk of reoffending and most likely risk of sexual reoffending, would increase significantly, to at least moderate to high risk, and the threshold of his sexual behaviour may well reach serious harm. 50. Dr White opines that many of the risk factors identified in her report are mitigated, at least in part, by the current forensic order and the potential repercussions of breaching his conditions. 51. Dr White stipulated that the Defendant is in a highly controlled setting with externally derived routine and structure. In her opinion, an instrumental part of this is owing to his forensic patient status. 52. Dr White concluded that there is insufficient evidence to suggest that the Defendant's risk can be adequately managed without extension of his forensic patient status. Accordingly, the Defendant's placement in the community as a forensic patient provides the least restrictive, safe and effective care that he presently requires. 53. Accordingly, Dr White concluded that an extension order for a period of two years is reasonable. This would allow for "a significant period of community supervision and further gradual easing of conditions with monitoring and supervision and evaluation of his responses under the oversight of the MHRT, to ensure community safety and that his behaviour can be managed and facilitate the development of informed future treatment and risk management plans and implementation of same, as required."

Conclusion

The evidence supports a conclusion that there has not been sufficient change since the present extension order was made by McNaughton J in 2022 for the level of risk posed by Mr Ramirez to be downgraded to any significant extent. That is not to say that there has not been improvement. He has managed to progress to community care as McNaughton J envisaged. However, according to Dr White he continues to present a risk of causing serious harm to others if he ceases to be a forensic patient. The nature and gravity of the risk remains unacceptable and there is no less restrictive means of managing it. On the assumption the evidence is accepted, it is capable of establishing these matters to a high degree of probability.
Dr White's assessment and conclusions address the statutory criteria for the making of the orders sought. Adopting the legislative terminology, the matters alleged in the documents relied upon by the Attorney General would, if proved, justify the making of an extension order. Further, it appears the existing extension order may expire before these proceedings are determined.

Orders

The following orders are made: 1. Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to be appointed 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. 2. The defendant is directed to attend those examinations. 3. The defendant is subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 28 December 2024 for a period of three months.

Endnotes

Risk Assessment Report, Exhibit DS-1, p55-56
Exhibit DS-1, pp28, 442-448
Exhibit DS-1, pp450-455
Exhibit DS-1, pp438-441, 449
Exhibit DS-1, pp426-437
Exhibit DS-1, p550, 552
Exhibit DS-1, p553
Risk Assessment Report, Exhibit DS-1, [29]
Risk Assessment Report, Exhibit DS-1, [54]
Risk Assessment Report, Exhibit DS-1, [52]
Risk Assessment Report, Exhibit DS-1, [36], [51]
Risk Assessment Report, Exhibit DS-1, [75] 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: 15 October 2024

Mental Health (Forensic Provisions) Act 1990(NSW)

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