Attorney General of New South Wales v Skerry

Legislative Framework

1. Section 124 of the Act stipulates certain threshold requirements for an application to be made for an IEO, concerning a defendant's status and the time frame within which the application is made. The parties agree that they have been satisfied and I am so satisfied, as well.
2. Section 130 of the Act empowers the Supreme Court to make an interim order to extend a person's status as a forensic patient: "130 Interim extension orders The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court - (a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order."
3. Section 130(b) of the Act necessitates regard to the legislative test in s 122 of the Act for the making of an extension order: "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."
4. A preliminary hearing is required by s 126(4) of the Act, its purpose being for the Court to determine whether the documentation supporting the application would, if proved, "justify the making of an extension order" ("the preliminary hearing test"). If the Court is so satisfied, it must make orders appointing two psychiatrists, psychologists or medical practitioners, or any combination thereof, to separately examine the forensic patient and furnish reports to the Court: s 126(5) of the Act. If the Court is not so satisfied, it must dismiss the application: s 126(6) of the Act.

The application for an IEO

1. A joint statement of agreed facts (the agreed facts) has been tendered, in compliance with cl 26(i) of the Supreme Court Practice Note SC CL 12. The facts are agreed pursuant to s 191 of the Evidence Act 1995 (NSW). I refer to that document by way of background to the application.

Background to the application

1. The defendant is presently 57 years old. He has siblings, he is not in a relationship and has no children. He had a close relationship with his mother, who died in early 2024.
2. The defendant's criminal history commenced when he was aged 17. It includes entries for negligent driving, possession of a prohibited drug, contravention of an Apprehended Violence Order, breach of bail conditions, unlawful entry, common assault, goods suspected of being stolen, shoplifting, refusing/failing to pay for meal, aggravated indecent assault of a victim under the age of 16 years, using an offensive weapon to prevent lawful detention, destroy/damage property, aggravated sexual assault, and break and enter.
3. As to his sexual offending, I note that on 10 March 2009, the defendant was convicted of common assault. The police facts alleged that he touched and lightly squeezed a 14-year-old girl on her thigh, partially underneath her shorts. On 9 February 2010, he was charged with aggravated sexual assault. The police facts in relation to that offence alleged that he threatened a homeless man, took him into a public bathroom and forced him to perform oral sex, with the defendant ejaculating into his mouth.
4. As to his drug and alcohol use, the defendant has a prior history of opiate dependence, alcohol abuse and instances of failing to comply with his medication. In 2015, he reported drinking alcohol on a regular basis, smoking cannabis at the age of 16 or 17 which became a regular occurrence, smoking nicotine cigarettes throughout his life and using crystal methamphetamine and heroin. Recent reports since his conditional release indicate that the defendant has remained abstinent from illicit substances and alcohol. He has been diagnosed with a polysubstance use disorder (in remission in a controlled environment), as well as impaired cognitive function.
5. The defendant has a long and complicated mental health history. He was diagnosed with schizophrenia in 1990, when aged 23, and continues to suffer from a severe chronic treatment resistant schizophrenic illness, complicated by polysubstance use disorder, which, as mentioned above, is in remission. His illness is characterised with symptoms such as delusional beliefs, paranoia, and hallucinations.
6. The defendant has presented disinhibited behaviour in the community, and has continuously expressed ongoing delusional beliefs that an intruder comes into his bedroom at night to physically harm him and have sex with him/sexually assault him. Reports from the defendant's support workers have indicated that he believes that members of the public are his "bodyguards", and he has previously approached people asking whether they were sent to protect him, and whether certain vehicles had been sent for him (for example, a taxi waiting on the street), or that people were wanting to harm him.
7. The defendant has been a forensic patient since 6 July 2012, which was the date of the index offence of aggravated sexual assault without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The defendant entered the apartment of a female neighbour uninvited and dragged her by her hair to her bedroom, where he threatened to kill her, forced her to perform oral sex on him and then demanded money from her. At the time, he was subject to a Community Treatment Order (CTO).
8. The defendant was found unfit to be tried and on 5 November 2013, after a special hearing in the District Court, it was determined that, on the limited evidence available, he committed the offence charged. A limiting term of 3 years commencing on 6 July 2012, and expiring on 5 July 2015, was nominated.
9. The defendant's status as a forensic patient was extended for a period of 3 years each on three subsequent occasions by this Court; by Adams J on 9 September 2015: Attorney General of New South Wales v CD (Supreme Court (NSW), Adams J, 24 November 2016 unrep); by R A Hulme J on 14 November 2018: Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711; and by N Adams J on 11 February 2022: Attorney General of New South Wales v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 99. The last of those extensions is due to expire on 12 February 2025, which is why the plaintiff now seeks an interim order extending the defendant's status as a forensic patient pending final determination of the extension application.
10. On 26 August 2020, the defendant was granted conditional release by the Mental Health Review Tribunal (MHRT) and has been residing in the community in NDIS-funded supported accommodation provided by Challenge Community Services.

Recent behaviour and compliance

1. The agreed facts state the following in relation to the defendant's recent behaviour and compliance: "25. The following events are occasions in which the Defendant's behaviour has raised concerns: a) On 2 November 2021, it was reported that a fellow resident informed staff that the Defendant was masturbating in his room with his door open. b) On 10 March 2022, the Defendant yelled out 'hello' to one of the children in the street. He addressed the girl by name and waved, and when questioned on how he knew the girl's name, the Defendant stated that they play out the front all the time. c) On 15 April 2022, the Defendant kept walking towards the front door to watch the children who were playing outside, and at one point, shouted out to one. d) On 10 May 2023, it was reported that the Defendant was hanging around and playing with young children in the street in front of the residence. During the night, he was talking to the children, and the Defendant even attempted to go out into the front yard after being advised numerous times by staff to not go near the children. e) On 21 January 2024, it was noted that the Defendant has been sexually inappropriate towards female staff leading to him having mainly male support workers. 26. The following events are recent occasions in which the Defendant may have been experiencing delusional beliefs and hallucinations: a) On 21 January 2024, the Defendant was 'very paranoid', believing he is being raped every night and has been poisoned. b) On 9 February 2024, the Defendant continuously talked about the bikies picking him up in a private jet and buying him food. He also went to check if the smoke drawers were locked as he believed an 'Aboriginal lady' was poisoning him. c) On 24 February 2024, the Defendant stated that there is an Indigenous intruder at the home, but no one can see her as she is too fast. d) On 27 March 2024, the Defendant's delusional beliefs had increased, with more reports of bikies, paranoia about the security of the house, a girl spiking his tobacco, and someone coming into his room in the middle of the night. 27. The Defendant has maintained compliance with his medication regime, however continues to demonstrate a reluctance to take medication due to his belief that he does not need it. For example, on 16 May 2024, during the preparation of the [Justice Health and Forensic Mental Health Network (JHFMHN)] Clinical Risk Management Report, it was reported by the author that '[the defendant's] judgment was adequate in terms of his passive compliance with prescribed medications and appointments, however in the absence of external motivators his judgment was poor, in that he indicated if it were up to him, he would cease all treatment and disengage from mental health and psychosocial supports.'" (footnotes omitted)

The MHRT

1. The defendant has been reviewed periodically by the MHRT between 19 August 2020 and 28 May 2024. The effect of the review decisions of the MHRT is summarily canvassed below.
2. By a determination dated 27 August 2020, the defendant was granted conditional release and discharged from Bloomfield Hospital, subject to conditions, including being subject to line-of-sight supervision whilst in the community. The review decisions broadly reflected that the defendant has maintained compliance with his medication, but has continued to experience ongoing delusional beliefs, and at times, expressed frustration with the restrictions imposed on him. The MHRT decision dated 28 September 2022 had an observation that the defendant: "… presented with a low-moderate level of concern for problems arising from sexual behaviour and aggression, despite the high level of clinical and behavioural support in place."
3. The most recent review decision of the MHRT in the material is dated 27 June 2024. More positive findings are made, including that there had been a decrease in the defendant's psychotic symptoms in terms of intensity and frequency, and that he was more settled in his mental state and behaviour. The MHRT observed that although the defendant had been compliant with his medication, he lacked insight into the link between the medication and his improved state, and that he needed to be subject to ongoing monitoring when he accesses the community and engages with others.

Summary of reports

1. The agreed facts summarise recent mental health assessments of the defendant, including reports by Dr Jeremy O'Dea, forensic psychiatrist, dated 17 June 2024, and 22 August 2024: "The Risk Assessment Report 37. Dr Jeremy O'Dea, Forensic Psychiatrist, assessed the Defendant via audiovisual link on 17 May 2024 and prepared a Risk Assessment Report dated 17 June 2024 to satisfy the requirements of s 125(b) of the Act. 38. In his report, Dr O'Dea noted that he had assessed the defendant in person in 2015. Diagnoses 39. Dr O'Dea opines that the Defendant continues to suffer a severe chronic treatment resistant schizophrenic illness, complicated by polysubstance use disorder. The polysubstance use disorder is in remission in the controlled environment of the defendant's Conditional Release. 40. Dr O'Dea notes that the Defendant displayed symptoms and signs of a severe chronic schizophrenic illness and cognitive impairment such as delusions, disorder in his thinking, a blunted affect, ongoing judgment problems and impulsive behaviours, general disorganisation in thinking and behaviour, disinhibition and poor behavioural control, and poor insight into his psychiatric illness and treatment needs. 41. Dr O'Dea attributes the Defendant's significant and ongoing cognitive impairment to his severe chronic treatment resistant schizophrenic illness rather than to the head injury he suffered at the age of 16 years or any developmental disability. Risk Assessment 42. Dr O'Dea opines that the Defendant continues to pose a significant risk of causing serious harm to others, and this is directly related to his schizophrenic illness. Dr O'Dea arrives at this conclusion based on the Defendant's history, his schizophrenic illness not being under adequate control and presenting with ongoing symptoms, and behavioural concerns raised by the Defendant's support workers. 43. Dr O'Dea considers it reasonable to accept that the Defendant's risk is currently adequately and appropriately managed in the community under the current conditions of the Defendant's Conditional Release Order. However, Dr O'Dea finds that should the Defendant cease to be a forensic patient, he would pose an unacceptable risk of causing serious harm to others. Ongoing Management 44. Dr O'Dea opines that the Defendant's risk to others could not be adequately and appropriately managed in a less restrictive environment, or otherwise than by the Defendant continuing as a forensic patient. Dr O'Dea believed that the Defendant's risk to others could not be adequately and appropriately managed through continuation of existing care, treatment and supports without him remaining a forensic patient, and does not consider his risk being managed through a Community Treatment Order or the provisions of a Guardianship Order. 45. Dr O'Dea also recommends that the Defendant continue ongoing psychiatric treatment in order to optimise his response to treatment and manage his ongoing risk of causing serious harm to others. 46. Due to the Defendant's long term psychiatric problems, risks and needs, Dr O'Dea recommends the extension of the Defendant's status as a forensic patient should be indefinite, and of at least 5 years in duration. The Supplementary Risk Assessment Report 47. Dr O'Dea prepared a supplementary report dated 22 August 2024. 48. Dr O'Dea noted that the provisions of Conditional Release are more proscriptive, supervised, monitored and responsive than the less restrictive provisions of a Community Treatment Order and Guardianship Order. Accordingly, Dr O'Dea opines that the provisions of Conditional Release are more suitable to the Defendant's risk management needs. 49. Dr O'Dea reiterated that the Defendant's risk to others could not be adequately and appropriately managed at this stage in a less restrictive environment than, or otherwise than, as part of his continuation as a forensic patient. Reports of other qualified psychiatrists and registered psychologists who have assessed the Defendant 50. A number of reports have been prepared in relation to the Defendant. Relevant and recent ones are summarised below. Confidential Psychiatric Report to the MHRT dated 7 November 2023 51. Dr Aanchal Agrawal (a member of the Defendant's treating team) prepared a report for the Tribunal for the purposes of its 29 November 2023 review. Dr Agrawal noted that the Defendant's Clozapine dosage increased from 350mg to 375mg in accordance with the recommendation of his forensic psychiatrist. Dr Agrawal reported that the Defendant continued to present limited insight into his illness and continued to request for his Clozapine to be reduced. 52. Dr Agrawal also noted that the Defendant's case manager had documented ongoing delusional beliefs in the form of believing someone came into the house one night and sexually interfered with him. The Defendant expressed the view that there needed to be security cameras installed in his bedroom and the house. Psychiatric Assessment and Report dated 10 November 2023 53. Dr Kim Dilati (who has prepared a report after the Defendant had been referred for psychological assessment by his support coordinator) confirmed that the Defendant's symptoms are consistent with a neurocognitive disorder, schizophrenia, and cannabis, stimulant and opioid use disorder (in sustained remission). 54. The Defendant's psychometric results reveal that he scored within the moderate range of sexual offending and the high range of violent offending, and requires one-on-one supervision at all times, by at least one male support worker, to mitigate his risk of offending due to his difficulties with judgment, insight, mental health, aggression, impulsivity, cognitive distortions, and history of offending. 55. Dr Dilati also noted that the Defendant presented with limited insight and has not reached rehabilitation in order for the issues that aggravate his risk to be mitigated. CFMHS Risk Management Report to the MHRT dated 16 November 2023 56. Dr Yin-Lan Soon and Ms Laura Rodgers of the Community Forensic Mental Health Service (CFMHS) provided a report to the Tribunal for the purposes of the 29 November 2023 review hearing. They were of the opinion that the Defendant continues to present with a high loading of static factors for both sexual and other violent behaviour, which increases his vulnerability for further repeat behaviours. He also presents with moderate-high dynamic factors which have increased over the past six months. 57. Dr Soon and Ms Rodgers further reported that the Defendant's challenging behaviour had increased, with him snapping at staff and becoming easily agitated more frequently. There was also ongoing incidents when the Defendant would leave the house without informing staff, and on one occasion, he was found at the neighbour's residence in their car port. On another occasion, he walked out the front door, and when staff approached him, he became agitated at staff. CFMHS Report to the MHRT dated 16 May 2024 58. Dr Yin-Lan Soon and Ms Laura Rodgers provided a further report for the purposes of the 28 May 2024 review. They opined that the Defendant presents with a moderate level of concern for problem sexual behaviour and aggression, despite being subject to high levels of clinical and behavioural support. 59. The Defendant's level of risk has slightly deceased and a reduction in the intensity and frequency of delusional beliefs was noted - this improvement is attributed from the increase in his Clozapine from 350mg to 375mg which was subsequently reduced in March 2024. Reports from other government agencies responsible for the Defendant's detention, care or treatment 60. Challenge Community Services has noted that the Defendant continues to engage in inappropriate and concerning behaviour when he is on support in the community, including leering at women in swim wear, running up to unknown people and asking if they have his discharge papers, asking unknown people if they were his bodyguards, running up to the police and talking to them, and believing that someone is entering his room at night." (footnotes omitted)"

Consideration and determination

1. It is clear from the recent forensic reports, against the background of the defendant's history of mental health diagnoses, past drug and alcohol abuse and criminal offending, that if the defendant is not subject to the powers and constraints that accompany his status as a forensic patient, there is a real risk of him causing serious harm to others in the community; in other words, the gravity of the risk is unacceptable and there are no less restrictive means available of managing that risk. If those matters in the material before the Court are proved, it would justify the making of an extension order.

Orders

1. I make the following orders. (1) Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act): (a) Two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) 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, and (b) I direct the defendant to attend those examinations; (2) Pursuant to ss 130 and 131 of the Act 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 12 February 2025, for a period of three months; (3) Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

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: 28 November 2024