Attorney General of New South Wales v Skerry

Factual background

1. Before turning to the relevant legislation, I propose to set out some of the factual background to this application. I have drawn this background from the written submissions of the parties, the reports and the judgment of Dhanji J of 22 October 2021.
2. The defendant was born in 1967 and is currently 54 years old. He has two sisters and a brother. One of his sisters and his mother (aged 97) live in Brisbane. His mother resides in an aged care facility. He was born in Surry Hills to parents of Maltese heritage and attended schools in the inner west of Sydney until the age of 15. He worked briefly in unskilled positions, such as a kitchenhand in a nursing home and in a clothing company. His longest employment in one position was for two years. He has no vocational qualifications and has been on a disability support pension for approximately 35 years. He has provided inconsistent accounts over time regarding his childhood, including as to whether he was the subject of abuse as a child.
3. When he was 23 years old, the defendant was diagnosed with schizophrenia. It is common ground that he is mentally ill within the meaning of the Mental Health Act 2007 (NSW). His illness is chronic and longstanding. He is currently prescribed a significant dose of anti-psychotic medication (375g Clozapine) and is still experiencing delusions. In addition to his schizophrenia, he has also been diagnosed with a substance abuse disorder (cannabis, alcohol, stimulants and opiates). This disorder is currently in remission given his close supervision. In addition, the defendant is cognitively impaired.

Criminal history

1. The defendant's criminal history discloses a lengthy pattern of offending commencing from when the defendant was 17 years old. He has convictions for: contravene apprehended violence order; possess prohibited drug; enter inclosed lands; enter prescribed premises; goods in custody; shoplifting; common assault; failure to stop; drive in a manner dangerous; and negligent driving.
2. Prior to the defendant's status as a forensic patient, he had a number of admissions to psychiatric hospitals in Sydney and has been the subject of many Community Treatment Orders ("CTOs") under the Mental Health Act. His history includes non-compliance with and breaches of such orders.

Index offence

1. The defendant's status as a forensic patient initially arose as a result of events said to have occurred on 6 July 2012. At this time, the defendant was living in a Housing Commission flat and was under the care of the Canterbury mental health service. Significantly, he was subject to a CTO at the time of the index offence.
2. On this date, the defendant entered the apartment of the victim (a neighbour) uninvited, pushed her and dragged her by the hair into a bedroom. He forced the victim to fellate him while telling her to "shut up, stop crying or I'll kill you". He then ejaculated into her mouth.
3. On 7 July 2012, the defendant was taken into custody and charged with aggravated sexual assault, including the allegation of break and enter with intent to commit that indictable offence.
4. On 13 December 2012, the District Court at Parramatta found the defendant unfit to be tried and referred him to the Mental Health Review Tribunal ("the Tribunal"). The defendant was remanded in custody.
5. On 7 February 2013, the Tribunal reviewed the defendant and again found him unfit to be tried. The Tribunal also found that he was likely to remain unfit for a period of 12 months and made an order for his continued detention in Long Bay Prison Hospital.
6. On 8 August 2013, the defendant was again reviewed and found unfit to be tried.
7. As a result of the defendant's continuing unfitness, a special hearing was required. This took place in the District Court before Judge Madgwick QC. It was there determined that, on the limited evidence available, the defendant committed the offence of sexual intercourse without consent. The more serious charge of entering with intent was not made out.
8. On 5 November 2013, Madgwick DCJ nominated a limiting term of three years commencing on 6 July 2012 and expiring on 5 July 2015. The Court referred the defendant to the Tribunal as then required by s 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the former Act"), and ordered he be detained in a mental health facility. The defendant thereby became a forensic patient pursuant to s 42 of the former Act (see now s 72 of the Act).

Subsequent forensic history

1. Prior to the expiry of the limiting term, the Attorney General brought proceedings which resulted in an order under Sch 1 of the former Act for the extension of the defendant's status as a forensic patient for a period of three years. Interim orders were made by RA Hulme J: Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859. Final orders were made by Adams J on 9 September 2015, with reasons provided at a later time: Attorney General of New South Wales v CD (Supreme Court (NSW), 24 November 2016, unrep).
2. A further extension was ordered by RA Hulme J on 14 November 2018 for another three years: Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711. His Honour also made the interim orders: Attorney General of New South Wales v Skerry [2018] NSWSC 1161. The extension order expired on 13 November 2021.
3. The plaintiff now seeks a third extension order against the defendant - the first under the new Act that commenced on 27 March 2021. The defendant is currently subject to an interim extension order made by Dhanji J on 22 October 2021. This is due to expire on 12 February 2022. The orders made by his Honour on 22 October were not opposed by the defendant. However, at this time, the defendant indicated opposition to the making of the final order now sought. As mentioned above, this opposition has since narrowed to the duration of the final extension order rather than to it being made at all.

The defendant's present circumstances

1. The defendant is currently subject to a conditional release order made by the Tribunal on 28 August 2020 under s 83 of the Act. The order includes, relevantly, the following conditions: 1. That he reside at certain accommodation (condition 19); 2. That he notify his case managers of his telephone number (condition 20); 3. That he only go into the community when accompanied by a Challenge Australia staff member (condition 21); 4. That he not be absent overnight from his accommodation otherwise than as approved by his case manager (condition 22); 5. That he refrain from interstate or overseas travel without approval (condition 23); 6. That he refrain from engaging in unlawful conduct or conduct that could give rise to a reasonable apprehension that the safety of himself or of any member of the public is, or could be, seriously endangered (condition 24); 7. That he provide his case manager with a recent (head and shoulders) photograph (condition 25); 8. That he attend reviews before the Tribunal and as requested by the Committee Forensic Mental Health Service (conditions 26 and 27); and 9. That he consent to the sharing of information between those responsible for his care (condition 28).
2. The defendant currently lives in a three-bedroom supported housing facility that is staffed 24 hours a day, seven days a week. That accommodation is funded by a supported independent living package from NDIS. The defendant is supervised by Challenge Community Services ("Challenge") who provide one-on-one support. It is a condition of his accommodation that he does not consume alcohol or illicit drugs.
3. As stated above, the defendant is not employed and collects a disability support pension. His money is managed via a financial management order by the Public Trustee are Guardian. He is currently under the treatment of the local mental health team and is reviewed by locum psychiatrists.
4. On 27 August 2021, the defendant was reviewed by the Tribunal. It made no changes to the conditional release order, other than to provide for the appointment of a new treating psychiatrist.
5. Recent Challenge progress notes record that the defendant has, on a number of occasions, suffered from the delusion that an intruder has entered his room at night. On some of these occasions, he has been observed to become angry when his perceptions were questioned. He has also described delusions that someone has "put something in his bed" and that he has been "brainwashed". The defendant also has ongoing delusions that he is being persecuted by members of Outlaw Motorcycle Gangs. In addition to these delusions being recorded in the progress notes from Challenge, some or all of them were also expressed to Drs Matthews, Smith and Ellis.
6. The defendant has also exhibited some challenging behaviours during the course of his forensic order. In 2019, he was observed receiving oral sex from a female patient while on ground leave from Bloomfield Hospital. This was said to occur on five occasions and at a time when the defendant was taking cyproterone. Although the conduct was apparently consensual it was conducted in front of the hospital in public view.
7. On 30 July 2021, it is alleged that the defendant left his line of site supervision whilst on a group outing and followed two young women. The defendant has denied that he did so.
8. On 31 July 2021, the defendant was observed to approach a vulnerable male (another client of Challenge) with his arms outstretched and asked to cuddle him.
9. On other occasions the defendant is reported to have stared at or made inappropriate comments towards a woman when on a supervised outing and to have wandered away from his supervisors when on other supervised outings.
10. Other recent matters of concern noted in the Challenge progress notes include that the defendant has been reluctant to increase his medication regime.

Legislative scheme

1. The effect of the extension orders made to date is that the defendant has retained his status as a forensic patient beyond the expiry of the limiting term originally imposed by Madgwick DCJ. Forensic patients are dealt with under Pt 5 of the Act. Section 69 provides that the objects of the Act 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 have a mental health impairment or cognitive impairment, (c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims.
2. Generally, Pt 5 provides for the review of forensic patients by the Tribunal and gives the Tribunal power to make orders with respect to patients' detention and release, either conditional or unconditional (see especially Div 3).
3. Part 6 of the Act provides for the extension of a person's status as a forensic patient. An application for an extension order may be made by a Minister administering the Act (s 123) in respect of a forensic patient only if the patient is subject to a limiting term or existing extension order (s 124(1)). The defendant is evidently in the latter category.
4. The test for when an extension order can be made is set out in s 122 of the Act in the following terms: 122 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 Part 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 the patient ceases to be 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.
5. Pursuant to s 128 of the Act, extension orders are limited to five years in duration, but subsequent orders can be made.
6. Section 127(1) of the Act provides that the Court may grant or dismiss any application for an extension order made by the Attorney-General, and sub-s (2) sets out a list of mandatory considerations (a)-(i) which I discuss below in my consideration.
7. Section 125 of the Act provides: 125 Requirements with respect to application An application for an extension order must be supported by documentation - (a) that addresses each of the matters referred to in section 127(2) (to the extent relevant to the application), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) - (i) that assesses the risk of the forensic patient causing serious harm to others, and (ii) that addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.
8. Finally, an extension order may be revoked or varied at any time in accordance with the terms of s 133 of the Act.
9. Division 3 of Part 5 of the Act provides for the review of a forensic patient by the Tribunal. Specifically, s 78(d) of the Act requires the Tribunal to review the status of the forensic patient every six months and s 79 empowers the tribunal to review the patient at any time.
10. The plaintiff placed significant reliance on s 83 of the Act which empowers the Tribunal to grant the release of the forensic patient. This may be done subject to conditions or unconditionally. An order for unconditional release brings a person's status as a forensic patient to an end: s 101(b). Relevantly for present purposes, s 83(3) of the Act provides that the tribunal must not make an order for the unconditional release of a forensic patient subject to an extension or interim extension order but may make instead a recommendation to the Supreme Court as to the variation or termination of an extension order. The effect of this would be that should the Tribunal be satisfied prior to the expiration of any extension order made by the Court that the defendant may no longer be a forensic patient, the Court could terminate the extension order.
11. Division 9 of Pt 5 of the Act deals with the enforcement of a forensic order and provides that the President of the Tribunal may make an order for the apprehension of a person if, inter alia, it appears that the person has breached a condition of an order of their conditional release.
12. Finally, s 147 of the Act provides that the Attorney General may appear to make submissions in any hearing regarding the possible release of a forensic patient or the review of the patient who has been apprehended following an order by the President of the Tribunal under the Act.

Other Relevant legislation

1. Given the requirement in s 122(1)(b) that the court consider whether the defendant's risk cannot be managed by "other less restrictive means", it is necessary to consider alternate orders that could be made under the Mental Health Act and/or the Guardianship Act 1987 (NSW).

Mental Health Act 2007

1. The relevant provisions under the Mental Health Act pertain to CTOs. Section 51 of the Act defines a CTO as an order authorising the compulsory treatment of a person. Section 53 of the Act provides the circumstances in which a CTO may be made which is in these terms: 53 Determination of applications for community treatment orders (1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order. (2) For that purpose, the Tribunal is to consider the following - (a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order, (b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order, (c) a report as to the efficacy of any previous community treatment order for the affected person, (d) any other information placed before the Tribunal. (3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that - (a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and (b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and (c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment. (3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted. (4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person. (5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied - (a) the affected person has previously refused to accept appropriate treatment, (b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness, (c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission), (d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person. (6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force. (7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required -
2. Section 54 of the Act deals with the contents of the treatment plan referred to in s 53(3)(b) of the Act. It provides that a treatment plan for an affected person is to consist of, in general terms, an outline of the proposed treatment, counselling, management, rehabilitation or other services to be provided to implement the community treatment order and the method by which, the frequency with which, and the place at which, the services would be provided for that purpose.
3. Section 56 of the Act provides for the form and duration of community treatment orders. It provides that: (1) A community treatment order is to - (a) nominate the declared mental health facility that is to implement the treatment plan for the affected person, and (b) require the affected person to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan. (2) A community treatment order ceases to have effect at the end of the period specified in the order or, if no period is specified, 12 months after the order is made. Note - Section 53 (6) specifies that the maximum period for an order is to be 12 months. (3) A community treatment order has no effect while an affected person is detained in a mental health facility (otherwise than under this Part), or is a voluntary patient. (4) The fact that an affected person is the subject of proceedings before the Tribunal does not, unless the Tribunal otherwise orders, affect the operation or duration of the community treatment order. (5) The time for which a community treatment order is in force does not cease to run during any period in which this section provides that it has no effect.
4. Section 57 of the Act sets out the duties and functions of a person subject to a CTO including that he or she must comply with the order. It also empowers the Director of community treatment implementing a CTO to "take all reasonable steps to have medication administered, and services provided, in accordance with the order". Medication may be administered without the consent of a person subject to a CTO and the use of force is authorised as is entry onto the subject person's land without their consent. Section 59 of the Act authorises, inter alia, that the Director of community treatment may request police assistance in the event of a breach.
5. If a breach order is issued the person is taken to a specified mental facility. An authorised medical officer is then required to review the person: s 61. If it is determined that the affected person is a mentally ill person and no other care of a less restrictive kind "that is consistent with safe and effective care" is appropriate or reasonably available, the person is to be detained for further observation and treatment. The authorised medical officer is also authorised to discharge the person if he or she decides that it is appropriate to do so. Sections 63, 64 and 65 provide that a person who has been breached is to be taken before the Tribunal for a decision to be made as to whether the person should be detained until the end of the CTO as a voluntary patient but if not so satisfied the person is to be released on a further CTO or discharged.
6. The Tribunal also has power to vary or revoke a CTO but s 66 provides that a CTO can only be revoked if the director of community treatment is of the opinion that the affected person is not likely to benefit from a continuation of the order.

Guardianship Act 1987

1. The Guardianship Act provides that if a person needs a guardian one can be appointed by the NSW Civil and Administrative Tribunal ("NCAT"). The Public Guardian can be appointed as a person's guardian if no other suitable person is available. Relevantly, the duty of anyone exercising a function of the Guardianship Act is to observe a number of principles set out in s 4 of the Act as follows: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

The expert evidence

1. The Attorney General relied upon the report of Dr Ellis in support of its application. That report was before Dhanji J when his Honour made the interim order on 22 October 2021. Dr Ellis has provided a number of reports about the defendant since 2015 when he was first instructed by Legal Aid of NSW to do so. In addition, the two court-appointed experts, Drs Smith and Matthews, have now provided reports. All reports were lengthy and detailed.
2. Given the degree of concurrence as between Drs Ellis, Matthews and Smith as to the diagnosis and management of the defendant, I do not propose to set out the contents of these reports in any detail. Rather, I will confine my summaries of their expert evidence to the topics of their respective diagnoses, risk assessment, management as a forensic patient, and any "other less restrictive means" to adequately manage the defendant's risk.

Diagnosis

1. Dr Ellis' expert opinion was that the defendant meets criteria for a psychiatric diagnosis of schizophrenia and for a substance use disorder. With respect to the diagnosis of schizophrenia, he noted that: the defendant presented with continuing symptoms of auditory hallucinations and delusions that had been noted over the past 30 years; that he has required Clozapine; that his disorder was considered to be treatment resistant; and that his psychosocial function was "markedly" impaired by his symptoms. As for the defendant's substance use disorder, Dr Ellis was of the opinion that the defendant was in remission in a supervised environment and that he showed some insight into the need to remain abstinent. Despite this, apart from supervision, the defendant had limited strategies to desist from use. Dr Ellis also noted support for a diagnosis of an intellectual disability or a neurocognitive disorder (if the deficit emerged after developing schizophrenia) and that his cognitive function must be taken into consideration when determining management options for him.
2. Dr Matthews was also of the opinion that the defendant has a diagnosis of schizophrenia, alcohol and polysubstance use disorder and a degree of neurocognitive impairment. She described his schizophrenia as treatment resistant in nature given that his psychotic symptoms persist despite the experience of euthymia, compliance with psychotropics and abstinence from alcohol and drug use. She noted that his alcohol and polysubstance use disorder is currently in remission because of the strict legal guidelines and supervision plan he is under and that his neurocognitive impairment seems to be global rather than related to a specific area of functioning. Her opinion was that it is likely that it was acquired rather than congenital.
3. Dr Smith also diagnosed the defendant with schizophrenia, substance use disorder and cognitive impairment. With respect to his schizophrenia, Dr Smith noted that the diagnosis was longstanding. The defendant had a number of ongoing symptoms at the interview and as a result of active symptoms of psychosis, he has recently had his medication (Clozapine) increased. In his opinion, the defendant "remains significantly unwell now even though he is on the gold standard treatment" and that "it is likely that he will continue to suffer these in the long term, probably lifelong." He did not formally assess the defendant's cognitive functioning and noted that his own assessment is consistent with formal clinical assessments done in the Macquarie unit and by Dr Sally MsSwiggan.
4. With respect to the defendant's substance use disorder, Dr Smith noted that it was in remission in a supervised environment but that even in that environment "there continues to be a reflex 'seeking' of substances to manage the distress caused by his psychotic symptoms." Regarding the diagnosis of cognitive impairment, he noted that the formal measures of intelligence place him in an intellectually disabled range and that it is likely that his chronic mental illness has impacted on his cognitive function generally. He noted the defendant's longstanding difficulties with memory, understanding complex issues, and maintaining change in behaviour for a prolonged time and that there may be some improvement if there can be better control of his psychotic symptoms. In addition to that, it was his opinion that even though the defendant does not reach the diagnosis of paraphilia, it is something to be monitored. He did not meet criteria for a diagnosis of antisocial personality disorder.

Management/treatment as forensic patient

1. Dr Ellis noted that given that the defendant presented with delusions and hallucinations he would be considered a "mentally ill person" under the Mental Health Act. His opinion was that there was no safe and effective care available to him other than mandated care. In his opinion effective risk management in his case is specialised forensic mental health care that includes psychotropic medication management, intervention for substance use, specific rehabilitation aimed at previous offending behaviour and general psychiatric rehabilitation. In his opinion that type of care could be accommodated under an order for conditional release as a forensic patient.
2. Dr Matthews was of the opinion that the defendant's risk of "causing serious harm" to others could be adequately managed through continuation of his forensic order.
3. In Dr Smith's opinion the defendant should remain as a forensic patient. He noted the practical advantages of such management to be that he would be subject to regular reviews by the Tribunal which could address any problems and also, if appropriate, make the decision to terminate his status as a forensic patient. Also, he noted that the Tribunal is legally bound to take into account the risk to the general public if it is of the opinion that a person is a "mentally ill person". Terminating a CTO does not have that requirement. Further, there are limitations to the provision of treatment to forensic patients in the community, in that the provision of community services is "significantly" under resourced when managing "highly complex patients with intersecting and subtle risks" such as the defendant. He also noted that the defendant's previous management by a local community team proved to be ineffective. Even now that he has a forensic patient status there are certain shortfalls in his management, namely that he is acutely psychotic and is being reviewed by different locum consultants. In addition to that, he noted that a CTO could be rescinded or allowed to lapse at any time with no oversight either by the Tribunal, the community forensic mental health team or a suitable forensic psychiatrist.

Adequate/Less restrictive means

1. Dr Ellis was of the opinion that there was a substantial difference to the care and risk management in relation to an outpatient on a forensic order as opposed to a CTO with the recall power of the clinical team and the Tribunal being a substantially different condition. In his view, clinical recall to hospital or prison can be enacted more rapidly with respect to forensic patients in a cycle of clinical deterioration. He noted that the success of that approach is well documented and that it does not allow for the defendant's condition to deteriorate to a point of becoming a "mentally ill person"; early deterioration or non-compliance could be grounds for hospitalisation.
2. Dr Ellis also expressed the view that a forensic order would enable more oversight and the defendant could only be discharged from the order or granted leave by an order of the forensic arm of the Tribunal. Under a CTO scheme the default would be under the sole care of general mental health services with the specialist input into his treatment being optional rather than standard as it would be under a forensic order. Dr Ellis' view was that the defendant has a complex and chronic risk profile including poor cognitive function and that a CTO would be more acceptable once a greater period of stability was established. Such a CTO would allow for involuntary admission to hospital, administration of psychotropic medication, mandated testing for substances and potential proceedings for failing to comply.
3. In Dr Matthews' opinion the defendant would require ongoing assertive care in the community given that he continues to exhibit symptoms of mental illness, has poor insight into his illness, has recently shown behavioural instability and has issues with compliance with treatment and responsiveness. Voluntary treatment options would in her opinion lead to deterioration of his mental state and an unacceptable increase in risk to the community. She was of the opinion that that is not a satisfactory option in the defendant's case. In her opinion the defendant did not need involuntary inpatient order in a public hospital at the current time given that for 18 months it has been demonstrated that community management is a viable option.
4. Dr Matthews was of the opinion that the defendant met the criteria for a CTO to be imposed and that it would be the less restrictive form of care in his situation. She made a number of "least restrictive" management recommendations with respect to his residence, supervision, mental health management, psychiatric and psychology input, medications, drug and alcohol intervention, family support and vocational and recreational activities. These include recommendations that his supported independent living accommodation include the same level of professional support and security measures; that his supervision arrangements should continue the way they are now; that he should continue ongoing engagement with his local CMHT with his scheduled case manager's appointment scheduled at fortnightly/monthly frequency or as appropriate; that he requires ongoing psychiatric monitoring with monthly appointments; that he should receive regular psychological treatment in addition to his treatment plan; that he continue to abstain from drug and alcohol use with random urine drug tests and drug and alcohol support; that he continue with community activities; and that he has more frequent contact with his mother and sister. She also suggested that consideration be given to whether the management conditions could be facilitated closer to where his family reside.
5. Dr Matthews recommended a guardianship order to complement a CTO given that the defendant reported that he would like to move into independent, unsupervised accommodation if his forensic order lapses. She noted that the CTO power extended only to decisions with respect to his mental health care. She also recommended the use of restrictive practices to complement a guardianship order that can be endorsed by NCAT. These could include various forms of seclusion and restraint during times of mental destabilisation, registration on the Child Protection Register in NSW, anti-libidinal medication and financial management order.
6. In Dr Smith's opinion, progression from being a forensic patient would require clinical stability, a settled management plan, solid working relationship with the local community service, and a good level of social support in the community none of which is present in the defendant's case. In his opinion a CTO should be put in place in the future once appropriate structures are in place should he cease to be assessed as a forensic patient.

Risk assessment

1. Dr Ellis noted that actuarial tool STATIC 99R and structural judgment tools HCR-20 v3 and Risk for Sexual Violence Protocol ("RSVP") have been used to aid clinical assessment in assessing risk of serious harm to others and identifying relevant risk factors contributing to that risk. Identified risk factors include a history of personal violence and general offending, a lack of stable family and intimate relationships, impulsivity, historical substance use, potential antisocial personality traits as a result of early development of mental illness, a diagnosis of major mental illness, negative attitudes towards his offence and authority, employment problems and poor prior engagement with rehabilitation. He noted that the defendant currently presented with ongoing symptoms of mental illness (delusions and hallucinations), poor insight into his mental function and its relationship to prior violence. He was responding well to supervision and has improved in his stability. In his opinion the defendant would fall into a group of persons with a high risk of offending that is greater than a theoretical average offender or psychiatric patient and that there would be clinical grounds to continue intervention to manage risk.
2. Dr Matthews assessed the defendant's risk of harm in the domains of risk of violence and risk of sexual violence. Risk of violence was assessed by utilising the HCR-20 v3 assessment tool. This too assesses the potential for future violent behaviour by analysing the historical and dynamic risk factors relating to the defendant. In her assessment the defendant presented with a high load of historical risk factors for future violence and his level of risk of inflicting "serious harm" via violence was increased when compared to the average citizen. Risk of sexual offending was assessed using the Static-99R actuarial tool. The defendant's score of 5 placed him in the category of risk level IVBa (above average risk). Dr Matthews noted that the defendant's score "is recorded in the 89th percentile with reference to other adult male sex offenders" and that "taking into account that approximately 7.4% of sex offenders share the same score as Mr Skerry, the percentile means that roughly 85% of offenders scored lower than Mr Skerry, and 7.6% scored higher." Dr Matthews used the RSVP for assessment of sexual violence in clinical settings. In her summary she noted that the defendant presented with a "moderate (progressing towards high)" load of risk factors for future sexual offending and that his risk factors placed him at a higher risk of causing "serious harm" via sexual violence compared to an average citizen.
3. Dr Smith also assessed the defendant's risk of future violence using the HCR-20 v3 and identified problems on a historical scale. He also identified his recent problems: problems with insight, symptoms of major mental disorder in that he is actively psychotic, with instability, difficulties with supervision response such as attempts to leave "line of sight" or being asked a number of times to do certain things, as well as future problems with respect to his living situation. Other problems include his lack of personal support, treatment or supervision response, and stress and coping. In Dr Smith's view it is unlikely that the defendant, if given the choice, would continue to take his medication if released and that he would likely relapse into alcohol and drug use within short time and be unable to look after himself safely which would lead to concern about the safety of others. When he is unwell, he is considered to be in a high-risk category.

Additional expert evidence

1. In addition to these three experts, I was provided with numerous prior expert reports prepared between 2012 and 2020 for the purposes of the Tribunal. Given the concession made, it is not necessary for me to consider all of those reports. I will however briefly note the most recent reports from Dr Claire Keating, who is a consultant forensic psychiatrist with the Community Forensic Mental Health Service ("CFMHS").
2. In Dr Keating's report dated 25 February 2021 she opined that the defendant's one-on-one supervision in his current accommodation is commensurate with his risk management needs. She also noted that issues may arise should this constant one-on-one monitoring not be strictly adhered to. She also noted that the defendant requires intensive treatment and monitoring for the foreseeable future. Dr Keating addressed the question of the defendants future risk management by making a number of recommendations which included: ongoing close supervision of the defendants medication compliance; a small increase in the treatment; a high level of support from activities of daily living; that he continued to reside at the Challenge accommodation; that he continue to have the 24-hour support one-on-one body that he currently has; that there should be a very low threshold for hospital admission; that he should abstain from all substance use including alcohol; that there should be fortnightly face-to-face reviews with his case manager; it should be monthly reviews with his consultant psychiatrist; there should be regular contact between his training team and Challenge and also that there should be random urine drug screens on four occasions over the next six months.
3. Dr Keating provided a more recent report of 17 August 2021. She remained of the view that the defendant continues to present with a high loading of static risk factors for both sexual and violent behaviour.

Relevant case law

1. I have set out the statutory test in s 122(1) of the Act above at [36]. The question is whether the Court is satisfied to a "high degree of probability" that the defendant poses an "unacceptable risk" of causing "serious harm" to others if he ceases to be a forensic patient and that the risk cannot be "adequately managed" by "other less restrictive means". None of these words in quotation marks are defined in the Act. The first two terms use the same statutory language as the Crimes High Risk Offenders Act 2006 (NSW) ("CHRO Act"). Both the plaintiff and the defendant submitted that cases used to interpret these terms as used in the CHRO Act were informative in the present context. I agree.
2. In the context of the CHRO Act, it has been held that the standard of proof, a "high degree of probability", is higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. I am satisfied that this is the appropriate standard.
3. As for what is meant by the phrase "unacceptable risk", in Lynn v State of New South Wales [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [58] that the phrase is to be given its everyday meaning within its context in and having regard to the objects of the Act then being considered. The evaluation is "… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (at [61]). In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J observed at [7] that, "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate".
4. The term "serious harm" is not defined in the Act either. The CHRO Act specifies certain "serious offences" and does not speak of "serious harm". In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 Davies J considered this term at [13]-[19] and noted that: "What authority there is on these undefined words tends to point to the inclusion of behaviour that would not extend nearly as far as the behaviour that constituted a serious sex offence or a serious violence offence. The matter is highlighted in the present case where the index offences did not involve personal violence."
5. His Honour observed lack of judicial consideration as to the meaning of the term "serious harm" in the Act but noted the observations of White J (as his Honour then was) in Re J (No 2) [2011] NSWSC 1224 at [89]-[94] regarding the meaning of that term in s 14 of the Mental Health Act. Davies J concluded the following at [95]: "…there is no reason in principle why 'serious harm' in the MHFPA would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of 'serious violence offence' in the CHROA) is explained to juries as being 'really serious injury', a concept that must be on a higher plane than 'serious harm'."
6. In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 RA Hulme J observed the following (at [16]) in relation to the meaning of "serious harm" in this statutory context: "The 'risk of causing serious harm to others' was considered by Davies J in his judgment on the preliminary hearing of the present matter. I agree with his Honour that it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of 'grievous bodily harm' (defined in the criminal law as really serious bodily harm). I accept the submission on behalf of Mr Kereopa that it contemplates something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not 'serious harm'."
7. Finally, as to the meaning of "adequately managed by other less restrictive means" in s 122(1)(b) of the Act, the Court would not need to consider this question unless first satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others. As Campbell J observed in Minister for Mental Health v Paciocco [2017] NSWSC 4 at [8] although the Attorney General carries the onus on both issues, on the second question he or she must prove the negative.
8. In Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 Garling J observed the following in relation to what is meant by "adequately managed by less restrictive means" at [63]-[64]: "It is also hard to see that if a risk can be adequately managed by a less restrictive means than continuing a person's status as a forensic patient, a Court could ever be satisfied that the risk is an unacceptable one. Nevertheless, the legislation requires the Court to approach the matter by considering, once it is satisfied that an unacceptable risk exists, whether adequate management by other less restrictive means, exists. The question to be determined here is expressed in terms that require the Court to be satisfied to a high degree of probability that the risk cannot be adequately managed. I would take the use of the phrase 'adequately managed' to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community."
9. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 ("Doolan") Adamson J considered the assessment of whether there existed adequate management by other less restrictive means to involve a comparison of the legal powers over a forensic patient compared with other alternate powers. Her Honour went on to undertake a detailed analysis of the alternate regimes under, on the one hand, forensic patients under the Act and, on the other hand, the regime for "civil" patients, including for involuntary patients, under the Mental Health Act. Given the expert evidence that the defendant would not qualify as an involuntary patient, it is only that analysis by her Honour concerning CTOs under the Mental Health Act, as well as guardianship orders under the Guardianship Act, that are presently relevant.
10. Her Honour undertook a comparison of the objects of the Act, the Mental Health Act and the Guardianship Act (at [101]-[103]) and noted that it is only the Act that has as an object the protection and safety of the public. At [108] her Honour noted the following: "The safety of members of the public is not identified as a relevant consideration under the Mental Health Act (although as referred to below it is incorporated into some of its provisions). Neither the Attorney-General, nor the Minister of Health is required to be consulted or heard. Indeed the focus of the Mental Health Act appears to be the person concerned. For example, s 53 (which concerns the determination of applications for CTOs) provides, in part: (3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that: (a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and …" (emphasis added)
11. Her Honour went on (at [114]-[116]) to compare the respective powers to impose conditions whilst the patient is living in the community. Whereas the Tribunal must have regard to the protection and safety of members of the public when imposing conditions on a forensic patient, a CTO simply requires a person to receive medication, therapy, counselling, management, rehabilitation and other services. This focus on a person's treatment limits the matters that can be included in a CTO. Moreover, a CTO can only be imposed for a maximum period of 12 months.
12. Further, at [117]-[118] her Honour compared the consequences which would follow from a breach of conditions by a person, as a forensic patient compared to a civil patient. Whereas a forensic patient is subject to the oversight of the Tribunal who may recall and detain the person upon breach, responsibility for overseeing a CTO patient falls on the director of community treatment who has no equivalent recall power.
13. Finally, her Honour compared the effect of the respective regimes overall at [119]-[129]. Her Honour identified the differences between the respective regimes before observing (at [121]): "Generally speaking the onus in the Act is in favour of greater restrictions on the forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By 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 a restriction is warranted. The classification from involuntary patient to voluntary patient can readily be changed. Moreover, any authorised medical practitioner can discharge the patient at any time and, indeed, is obliged to do so if the patient is not "mentally ill".
14. Her Honour also noted the Attorney General's right to be heard before a forensic patient is released to be an important safeguard and noted that the decision-making process for a forensic patient is more centralised. Her Honour then noted (at [124]) that: "Where a person is subject to a CTO in the community, enforcement is discretionary. While the Public Guardian may have certain powers (depending on the terms of the guardianship order), including coercive powers, there are practical limits to the way such powers can be used. The evidence presented to the Guardianship Tribunal in November 2012 (which led to the lapse of the guardianship order with respect to the defendant) illustrates the practical difficulties facing the Public Guardian in controlling and managing a person such as the defendant."
15. Having conducted this comparison, summarised over the preceding paragraphs, her Honour was ultimately persuaded that the unacceptable risk posed by the defendant in Doolan of causing serious harm to others could not adequately be managed by the alternative regime provided by the Mental Health Act.

Consideration

1. Although, as noted above, the defendant does not oppose the making of an extension order, it is still necessary for me to be independently satisfied that such an order should be made.
2. Having regard to the terms of s 122 of the Act, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. As was submitted on behalf of the plaintiff, the expert evidence was "uniformly to that effect". In reaching this conclusion I have had regard to 1. The defendant's persistent psychotic beliefs and recent instability; 2. The defendant's lack of insight not only regarding his offending but, more particularly, into his illness and need for treatment; 3. The defendant's minimisation of the offending and the role played by alcohol use (particularly in light of the defendant's expressed intention to resume alcohol consumption); and 4. The expert opinions of the three experts that, if left unsupervised, the defendant would not comply with his current management plan (especially regarding his future use of clozapine).
3. Turning to the second limb in s 122(1), that is sub-s (b), I am further satisfied that there are no "other less restrictive means" to "adequately" manage the risk posed by the defendant. The expert opinions of Drs Ellis and Smith support this conclusion. The expert opinion of Dr Matthews does so to a lesser extent in that she accepts that the defendant could not currently be adequately managed by alternate means due to the need for considerable transitional arrangements to be made before he could be placed on a CTO.
4. The plaintiff advanced nine reasons why a CTO (for which the defendant is otherwise eligible) would not adequately manage the defendant's risk. I have considered those submissions and accept them. They are as follows, and draw heavily on Adamson J's analysis in Doolan (summarised above).
5. First, the Act and the Mental Health Act have different focusses and objects. The Act requires that specific attention be given to the safety of the community in addition to the safety and welfare of the particular forensic patient. Accordingly, the presumption is in favour of greater restrictions on a forensic patient. In contrast, the parts of the Mental Health Act providing for CTOs are concerned predominantly with the treatment of the patient, with a presumption in favour of personal liberty.
6. Secondly, the supervision powers of the Tribunal in respect of a forensic patient are significantly greater than those available under a CTO. The Act mandates that the Tribunal review the forensic patient every six months (s 78(d)), where the Tribunal is empowered to vary the terms of the defendant's conditional release or revoke it entirely. The Tribunal, as a quasi-judicial body, is also well placed to consider the public interest (especially questions of community safety) when approving a treatment plan for the defendant. This can be contrasted with the narrower powers granted to the director of community treatment at the relevant declared mental facility under s 57 of the Mental Health Act, who would supervise the CTO.
7. Thirdly, the recall powers available to the Tribunal, should the defendant breach the conditions of his release as a forensic patient, contain considerably more safeguards than the equivalent powers upon a breach of a CTO. Section 109 of the Act is to be contrasted with ss 58, 59 and 62 of the Mental Health Act. Section 109 would allow the Tribunal to immediately detain the defendant. It would then be required to consider public safety before ordering his re-release. This is not necessarily the case upon breach of a CTO. Further, all the experts agree that the defendant has only complied with the terms of his current order because he is compelled to do so. In these circumstances, a less intensive regime with less intensive powers available in the event of a breach does not seem suitable.
8. Fourthly, the status of being a forensic patient comes with additional safeguards before termination, when compared to the termination of a CTO. Under the Act, in the defendant's case, his status as a forensic patient will remain until it expires, or the Court decides to revoke it (s 83(3)). Generally, the Tribunal's power to order release is curtailed by questions of public safety (s 84(1)(b)). There are no such protections provided for in the Mental Health Act regarding the termination of a CTO (ss 65-66). Also, a CTO may only be made for a period of 12 months (s 53(6) of the Mental Health Act) and lapses until it is renewed.
9. Fifthly, the range of conditions that may be attached to a CTO is less specific and less effective to manage the risk posed by the defendant than those available while he is a forensic patient. Here, s 85 of the Act (providing for conditions that may be imposed by the Tribunal on release of forensic patients) may be contrasted with s 56 of the Mental Health Act. Many of the conditions the defendant is currently subject to would not be available under a CTO.
10. Sixthly, there are constraints on the quality of care able to be provided by "community mental health practitioners," who would manage the defendant were he not subject to the conditions attached to his status as a forensic patient.
11. Seventhly, a CTO would leave too much discretion to the treating team (especially as to the termination of the defendant's care, which could occur without any external review).
12. Eighthly, the defendant's mental health history and current prognosis indicate that a CTO would be insufficient to manage his risk. It is to be noted that the defendant was on a CTO when the index offence occurred. The defendant is presently actively psychotic and unstable, and, despite some improvement, many of the conditions present at the time of the index offence remain.
13. Finally, the evidence is that the "assertive" case management plans, considered necessary by all experts to manage the defendant as a civilian patient, are not yet in place (such as regarding a change in accommodation).
14. I have also considered the question of whether a guardianship order, if made in conjunction with a CTO, would suffice to manage the defendant's risk. I am not satisfied that it would and accept generally the plaintiff's submissions in this regard. In reaching this conclusion I have had regard to Dr Matthews' opinion that these two schemes could work in concert, where a guardianship order might permit decisions to be made on the defendant's behalf in relation to areas beyond the scope of CTO conditions but that the defendant is not ready for such an order to be made as yet.
15. Nothing was put before the Court to suggest that the defendant has a relative who could be appointed to act as his guardian. It is inevitable that the Public Guardian would have to take on this role (s 15(2), (3) of the Guardianship Act). I accept the plaintiff's submission that the Public Guardian could not adequately manage the risk posed by the defendant because, under the Guardianship Act, she would be required to give paramountcy to the defendant's welfare and interests and only make decisions which restricted the defendant's freedom of decision and action as little as possible (s 4). Importantly, the Public Guardian would not be obliged (and perhaps not even permitted) to consider the safety of the community, nor would the recommendations of the defendant's treatment team be binding on her.
16. Further, the Public Guardian's role is "decision specific" as opposed to taking a holistic approach to the defendant's future case management needs. I accept the plaintiff's submission that such an approach would introduce "a degree of incoherence and uncertainty" in the defendant's management due to the extra actors involved: not only the Public Guardian herself, but also NCAT in the case of any merits review of her decisions.
17. As for the defendant's current attitude, it seems that he no longer wishes to be supervised. Although he told Dr Ellis that he was willing to comply with certain aspects of his treatment, he does not wish to continue with antipsychotic medication. He denied having cravings for alcohol or illicit drugs saying that he drinks non-alcoholic beer but that he would like to have a glass of wine or a beer at night. As for his attitude to his medication the defendant told Dr Ellis that if he "was released, [he] would be gradually weaned off it and be drug free…".
18. The defendant also told Dr Smith that he did not want to be a forensic patient anymore. Dr Smith noted from the progress notes that the defendant regularly asked for an additional cigarette at night, around the time he was getting anxious because he believed people were coming into his room. On another occasion he was observed to be acting erratically and his response was to get a non-alcoholic beer from the fridge. The defendant agreed with Dr Smith that smoking "takes the edge off" and reduced the distress caused by him hearing the voices. He responded to Dr Smith, "[y]eah. That is not a bad thing, is it?"
19. Dr Mathews noted that the defendant reported to her that if he was not assertively managed, he would disengage with mental health treatment.
20. In concluding that the statutory test in s 122(1) is met I have had regard to the mandatory considerations in s 127(2) of the Act. As stated above, unlike the schemes under the Mental Health Act and the Guardianship Act, I am required under s 127(2)(a) of the Act to consider the safety of the community. I have had particular regard to the reports from the court-appointed experts as well as Drs Ellis and Keating: s 127(2)(b) (c) and (d). I have also had regard to the decisions of the Tribunal concerning the defendant: s 127(2)(e) and the Progress notes from Challenge: s 127(2)(f).
21. I have considered the defendant's level of compliance with his obligations which while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act): s 127(2)(g). I have also considered the material relied upon by the defendant relevant to my determination including his current NDIS package: s 127(2)(i). I do not consider the views of the sentencing court to assist in my determination (that is, those of Madgwick DCJ, 5 November 2013): s 127(2)(h). I have had regard to the decision of R A Hulme J on 14 November 2018 (see above at [21]). His Honour noted at that time (at [82] of that judgment) that the safety of the community would be best assured by the powers of the Tribunal being available to "quickly and decisively deal with any relapse of Mr Skerry's condition or his commitment to maintaining his prescribed treatment and medication". I have had regard to the fact that as at that time, the defendant had not been conditionally released into the community. His Honour went on at [83] to order an extension order for a period of three years as a compromise position as the expert suggestions ranged from two to five years.

The length of the extension order

1. The only issue in dispute as between the parties was as to the length of the extension order. The maximum period of an order permissible under the Act is five years. The plaintiff submitted that a period of three years is appropriate whereas the defendant submitted that an extension order for a period of 12 months or, in the alternative, two years was appropriate.
2. Dr Ellis' opinion was that the defendant's risk profile, with underlying chronic disorders, requires long term management. He recommended an extension of his forensic status for three years.
3. Dr Smith had a number of concerns. On the one hand, the defendant's mental state had worsened over the last few months. On the other hand, he has made substantial progress in the community (although he considered that it is his forensic status that is likely to be the key factor that has prevented it from the worsening). He recommended an extension order for two years.
4. Dr Mathews' recommendation was that if a CTO were to be granted it should be for a period of 12 months that could be reviewed and extended on the application of his treating team. As for the extension of a forensic order, she recommended an extension of one year as appropriate to allow for sufficient planning of alternative management orders, to optimise his medication plan and to determine whether he could reside closer to his family.
5. I have considered the expert evidence on this issue. The basis for the plaintiff's contention that a period of three years is appropriate is that such a length of time is required to put in place an appropriate scheme that could allow for the defendant to be managed on a CTO in the future. I have also had regard to the fact that should an alternate scheme be able to be implemented prior to a period of three years elapsing, the Tribunal can always recommend the defendant's unconditional release at that earlier stage, as necessary, under s 83(3) of the Act.
6. I have had regard to the fact that the defendant was not released on his conditional order until 28 August 2020. He has only had just over 18 months on conditional release. Although he is making some progress there remain significant issues of concern, as I have identified above. His risk factors include alcohol and illicit drugs. In that regard the observations of Dr Smith set out at [106] are of concern. His anxiety in the evenings arises from delusions (despite being heavily medicated). In this context his recourse to additional cigarettes and/or non-alcoholic beer are clearly substitutes for alcohol and illicit drugs (which he presently has no access to) which he has turned to in the past. Were those conditions to be removed he would have no barrier to consuming drugs or alcohol which would significantly put the safety of the public at risk.
7. Although it is anticipated that the defendant will be able to be treated by way of a CTO on some future date, he was on such an order at the time of the commission of the index offence. Moreover, it was never sufficiently explained how conditions that could prevent the use of alcohol and prohibited drugs could be adequately managed as part of a CTO.
8. At the heart of the defendant's submissions was a concern that his status as a forensic patient does not continue indefinitely. Accordingly, the defendant submitted that the opinions of Drs Matthew and Smith should both be read as recommending an extension only for the purpose of "a clear and gradual transition" out of the defendant's status as a forensic patient. I accept that in circumstances where the defendant hopes to be unsupervised one day there is need for some hope in that regard. But the plaintiff does not seek an order for five years. Nor was it submitted that there is any intention that the defendant remain a forensic patient indefinitely. The question of the length of the extension order is to be assessed by looking at how long it would take for the defendant to be in a position where such an order is no longer required, having regard to the concerns I have outlined above.
9. For these reasons, I am satisfied that the appropriate length of an extension order is three years.

ORDERS

1. Accordingly, I make the following orders: 1. Pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), I order that the defendant be subject to an order for the extension of his status as a forensic patient for a period of three years from midnight on 13 February 2022. 2. Access to the Court file in this proceeding is restricted such as that access would be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

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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: 11 February 2022