Attorney-General of New South Wales v TP by her tutor Jennifer Thompson

Preliminary matters

1. At the preliminary hearing a motion was filed in court without objection, seeking the appointment of a tutor for TP and a resulting change to the name of the proceedings. There was no issue between the parties that given that the proceedings were civil in nature, it was necessary for a tutor to be appointed. There was no objection to the appointment of Ms Jennifer Thompson as tutor. Her consent was filed and in the circumstances I was satisfied that in accordance with the requirements of Rule 7.15 of the Uniform Civil Procedure Rules 2005 (NSW), she should be appointed to act as tutor.
2. A further issue arose as to how TP should be referred to, given the provisions of s 162 of the Mental Health Act 2007 (NSW) considered by Bellew J in NSW Minister for Heath v BB [2015] NSWSC 1418 at [3] - [8]. There his Honour took the view that: "A PRELIMINARY ISSUE 3 At the commencement of the hearing before me, counsel for the defendant made application for an order that there be no publication of the name of the defendant. The plaintiff neither consented to, nor opposed, that application. My attention was drawn to s. 162 of the Mental Health Act 2007 ("the MHA") which is in the following terms: Publication of names (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) to whom a matter before the Tribunal relates; (b) who appears as a witness before the Tribunal in any proceedings; or (c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health Forensic Provisions Act 1990 either before or after the hearing is completed. Maximum penalty: In the case of an individual - 50 penalty units or imprisonment for 12 months or both; or In the case of a corporation - 100 penalty units. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of the person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person. 4 Section 21 of the Interpretation Act 1987 (NSW) is in (inter alia) the following terms: Meaning of commonly used words and expressions (1) In any Act or instrument: … "person" includes an individual, a corporation, and a body corporate or politic. 5 I was referred by counsel for the plaintiff to the decision in Kizon v Palmer (1998) 82 FCR 310. In that case the Full Court of the Federal Court of Australia upheld a conclusion of the primary Judge that the word "person" where it was used in provisions of the Telecommunications Interception Act 1979 (Cth) which prohibited the disclosure of material did not apply to, or include, a Court hearing a public interest immunity claim, such that the Judge hearing the claim could examine affidavit material which contained prohibited information. 6 In Attorney-General (NSW) v XY [2014] NSWCA 466, McColl JA concluded (at [186]-[187]) that the making of an order under the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication of the name of the defendant was not necessary in light of s. 162 of the MHA which, her Honour accepted, applied to proceedings in the Court of Appeal. In those circumstances her Honour concluded that it was appropriate that the Court's judgment not use the Respondent's name. 7 More recently in Sarah White v Local Health Authority [2015] NSWSC 417, Slattery J noted (at [3]) that some of the parties to the proceedings before the Court were parties to proceedings before the Mental Health Review Tribunal ("the Tribunal"). His Honour concluded: "To avoid the publication of the names of any person involved in those MHR Tribunal proceedings in contravention of the Mental Health Act s. 162, this judgment uses pseudonyms for all parties and witnesses". 8 Although I have not had the benefit of full argument in relation to this issue, the judgments in XY and White clearly support the proposition that s. 162 of the Act applies to a Court. In these circumstances I propose to refer to the defendant as "BB"."
3. I took a similar view and accordingly the proceedings have been renamed and the defendant is referred to as "TP".

The statutory requirements

1. Under cl 2 of Sch 1 of the Act, a forensic patient can be made the subject of an extension order if and only if the Supreme Court is satisfied to a high degree of probability that: "(a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under section 53)."
2. The Court is not, however, 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.
3. Under cl 6(5) of Sch 1 if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must make orders: "(a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 2 registered medical practitioners, or (iv) any combination of 2 persons referred to in subparagraphs (i)-(iii), to conduct separate examinations of the forensic patient and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the forensic patient to attend those examinations."
4. Consideration must be given to the matters specified in cl 7 of Sch 1, cl 10 providing relevantly, that the Court may make an order for the interim extension of a person's status as a forensic patient, if it appears to the Court that the limiting term to which the forensic patient is subject will expire before the proceedings are determined, and the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
5. Clause 7 provides as to determination of an application for an extension order that: "(1) The Supreme Court may determine an application under this Part for an extension order: (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under clause 6 (5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order."
6. It is for the Mental Health Review Tribunal to determine what flows from an extension order, including as to whether the person is to be detained, or supervised in the community (see Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [8]).
7. I was satisfied that the evidence established that all of these statutory requirements were satisfied.
8. It should be observed that there has been some divergence of view as to the meaning of the undefined phrase "unacceptable risk" used both in cl 2 and in s 5E(2) of the Crimes (High Risk Offenders) Act 2006 (NSW) and the factors which should be taken into account in undertaking that assessment. Bellew J discussed the differences in BB at [96] - [97], describing them as firstly "the "everyday meaning approach" under which the test of unacceptable risk will be satisfied if a risk is present to a sufficient degree that the safety and protection of the community cannot be ensured unless an order is made" (see State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [20] and State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58] (per RA Hulme J in each case). His Honour described the alternative to be "the "balancing exercise approach", which involves balancing the likelihood of committing a further serious offence, the gravity of such an offence, and the consequences of an order on the offender" (see State of NSW v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 at [90]). I also considered this issue in the context of the Crimes (High Risk Offenders) Act in State of New South Wales v Mackey (No 2) [2015] NSWSC 1153 at [20] - [26].
9. Like Bellew J, in this case, I find it unnecessary to express a view as to the differing approaches, being satisfied on the evidence to which I will turn, on both bases, to a high degree of probability that TP poses an unacceptable risk of causing serious harm to others, if she ceases being a forensic patient, given her ongoing high risk of fire setting.
10. As to the question of adequate management of the risk which TP poses, I am also satisfied to a high degree of probability that such risk cannot be adequately managed by other, less restrictive means.
11. In summary, on the evidence at the time of the offence which led to the orders made by Whitford DCJ, TP was already subject to guardianship with coercive powers and required to live at a secure place, from which she still frequently managed to abscond. On that occasion, on being returned by police, she had with her means of lighting a fire, which she managed to conceal even on search with a metal detector. She has since been assessed for placement at a forensic hospital, but was found not to be suitable. The Mental Health Review Tribunal has repeatedly found on advice, outlined in its decisions, that there is as yet no other suitable place available to her in the community.

The evidence

1. TP, who was born in April 1972, has, as Whitford DCJ J found and Mr Ardasinski outlined in his report, a tragic history, including longstanding mental health issues for which she has received extensive psychiatric treatment, including during periods of incarceration for very serious offending.
2. In February 2014 she was found to be unfit to be tried on charges that she damaged a dwelling house by fire with intent to endanger life, intentionally damaged property by fire with intent to cause bodily injury and recklessly damaged property by fire. She was then referred to the Mental Health Review Tribunal under s 14 of the Act (R v TP (District Court (NSW), Blanch CJDC, 10 February 2014, unrep)). On 16 June, Whitford DCJ found that she had committed the alternative offence of reckless damage to property by fire.
3. In his risk assessment report, Mr Ardasinski referred to extensive records as to TP's history, to which he had referred in reaching his conclusions. They included psychiatric reports dating back to 1993, as well as sentencing remarks of Smart J in that year. TP not only has an intellectual disability, which appears to be related to a chromosomal deficiency, she has in the past been diagnosed to be suffering schizophrenia and more recently with psychopathic personality traits and a depressive illness.
4. TP has been convicted of setting at least 6 separate fires since 1992, the most recent in 2013. On three occasions she has been found to have intended to harm occupants inside. On one occasion her ex-partner was seriously injured.
5. Mr Ardasinski concluded that TP currently presents a high risk of committing similar acts of arson in future, that she requires ongoing care and treatment for her mental illness and a high level of support and management in a highly secure, fire retardant accommodation setting, in order to ensure safety to staff, residents and the community.
6. The offence which led to TP becoming the subject of the current limiting term occurred in May 2013, when she set a fire in her room at a supported accommodation facility operated by Ability Options, a non-government provider of services to persons suffering various disabilities, after having absconded and been returned to the facility. One cigarette lighter was removed on search when she re-entered the facility. She was able to secrete a second lighter, which she then used to light the fire in her room. She has said various things about these events since, including that she had lit the fire because she did not like her co-resident who she wished to harm; that she wished she had died in the fire; that voices had told her to light the fire; she has also denied having lit the fire at all and to a psychiatrist who examined her after she came before Whitford DCJ for sentences, that she intended to harm that person, who was rescued by police from the burning building.
7. TP has a lengthy criminal record for various offending, including stealing and obtaining benefits by deception. The fires which she has set have repeatedly put human life at risk and resulted in property damage. They have also resulted in convictions following guilty pleas, including convictions in 1999 for malicious damage to property with intent to cause bodily harm. An appeal on sentence for those offences was refused (see R v TP [2000] NSWCCA 375)
8. TP has been charged in relation to fire lighting followed the index offence, as well as a fire lit in 1992 on a ferry carrying several hundred passengers, when no one was hurt; a fire lit within 24 hours of her release from custody for stealing a bus in 1995; in 1996 a fire lit in her flat where her DOCS carer was present; in 1997 when two fires were lit at a NSW Department of Housing property on the same night, when another resident was in her room and TP later admitted an intention to kill; another fire at a DOCS facility which in 1997 caused very significant property damage; another fire lit at her boyfriend's apartment in 1997, where she later admitted to having wished to kill him and having lit the fire, knowing that he was asleep. This resulted in the unsuccessful appeal to the Court of Criminal Appeal in 2000.
9. TP also has a long record of repeated absconding from institutional care, as well as other offending including a past history of stealing buses, consistent with a long standing belief that she is a bus driver. There appears to have been a long gap in her offending from 2005 to 2013, while she was residing at the Ability Options facility, reflective of its management of her ongoing behaviour in that time.
10. TP has been detained in a mental health unit at the Silverwater Women's Correctional Centre since February 2014. She has been repeatedly reviewed by the Mental Health Review Tribunal in 2014 and 2015, the Tribunal on each occasion finding that there were reasonable grounds for concluding that arrangements then in place for her care, control and treatment were necessary. Her record at Silverwater includes having lit fires on a number of occasions.
11. TP's psychiatric history includes varying diagnoses over years in which she has been admitted to various psychiatric facilities. She has also been repeatedly assessed in connection with criminal charges. Early diagnoses of schizophrenia have given way to more recent diagnoses that TP suffers a severe personality disorder, given the nature of her hallucinations and delusional symptoms. More recently she has held fantasy ideations that she is a police officer or nurse, rather than a bus driver. Her symptoms have been described by Dr Greenberg, a psychiatrist who assessed her in 2014, as being relatively common in individuals with an intellectual disability.
12. Mr Ardasinski noted that Justice Health file information disclosed behavioural problems consistent with a diagnosed personality disorder of anti-social and borderline traits, as well as narcissistic features. There have also been two recent episodes of decompensation, when TP's challenging behaviour required psychiatric intervention. The psychiatrist who is presently treating TP, Dr Watt, then considered that her conditions were depressive, rather than psychotic and that she required further treatment.
13. Mr Ardasinski considered the results of TP's assessment, using the Psychopathy Checklist, widely used in the diagnosis and assessment of psychopathy. Those results, when considered with the totality of the information he was provided, led him to the conclusion that TP demonstrates a large number of psychopathic traits. He also considered that account had to be taken of her history of conning and manipulative behaviours, as well as pathological lying, lack of remorse or appropriate empathy, being prone to boredom, impulsive and irresponsible behaviours, failing to take responsibility for her actions and lacking any realistic long term goals.
14. Mr Ardasinski also noted TP's long standing diagnosis of suffering an intellectual disability and the consistent results of cognitive testing over years, most recently in April 2015. Her results place her into the category of severe adaptive behaviour impairment, consistent with observations made of her when living in structured community based and custodial settings, where she required assistance with activities of daily living, including as to hygiene.
15. Mr Ardasinski also noted the results of TP's genetic testing, which accounted for her dysmorphic features and intellectual disability. This, he considered, made it unlikely that her level of functioning or fitness to plead would improve in the foreseeable future.
16. TP has little insight, Mr Ardasinski found on interview, either into her disability and mental health issues, or current circumstances as a forensic patient, but she herself suggested that she would be unlikely to continue her current medications regime, without reminders and the care and supervision she presently receives.
17. Mr Ardasinski also found that TP had little insight into her circumstances. She denied her most recent arson and considered that she would not get into future trouble, because as a police officer, it was not in her nature to commit acts of violence. Certain of the fires which TP has lit in the past were, however, considered by Mr Ardasinski to have been acts of violence, given the circumstances in which they were lit.
18. Mr Ardasinski described the risk assessment tools which he had used and their limitations. He noted the assessments by Dr Furst in October 2013 and Dr Greenberg in January 2014 and their conclusions as to TP's risks to others. He also noted other opinions dating back to 1996, that TP presented a risk of repeated offending by lighting fires.
19. Mr Ardasinski also outlined TP's very unfortunate personal history of neglect as a young child, when she was subjected to various forms of abuse, over years. He considered that these traumatic experiences had shaped her world view, leaving her feeling safer in a fantasy world, where she was not vulnerable.
20. He considered that TP held a fire-aggression fusion script, which resulted, when she felt threatened, in retaliation or seeking to harm those who she perceived had wronged her, by burning buildings in which they were sleeping. The result was that she had acted on built up tension, causing significant property damage and posing a significant risk to human life, as well as having caused actual harm to some of her victims.
21. TP has come under the care of the Public Guardian and is eligible for ADHC services, and has also been accepted as a client of the Community Justice Program. Mr Ardasinski noted, however, that the Community Justice Program had yet to determine a suitable model of care for TP in the community, which could adequately manage the risks which she posed. No viable option had been identified by the time of his report. She required the highest level of care and supervision.
22. The risk which TP posed was identified by Mr Ardasinski to be that if she developed any grievance against a staff member or other resident, it was quite likely that she could set a fire, with the aim of trapping the targeted individual within the burning building. She also had a propensity for violence, and a moderate risk of future violence and other criminality. Mr Ardasinski concluded that TP fell into the high risk category of violence through fire setting relative to other female offenders and psychiatric patients. He concluded that accommodation support staff who did not have powers of search and seizure could not ensure that she was not concealing fire setting implements.
23. In other material tendered, it is apparent that the guardianship orders made in September 2012, and the resulting living arrangements in place as the result of the coercive powers thereby granted, at the time of TP's most recent offending could not adequately manage the risks which she then plainly posed. On the evidence she continues to pose such risks.
24. As the Attorney General submitted, the principles of guardianship specified in s 4 of the Guardianship Act 1987 (NSW) are not concerned with community safety, but rather with TP's welfare, interests, life and freedoms, even when coercive powers are exercised. By way of contrast, when exercising its functions, which include regular review and close supervision, even after release, the Mental Health Review Tribunal is obliged to consider matters which include the safety of forensic patients, as well as that of members of the public (see s 43 of the Mental Health (Forensic Provisions) Act).
25. It appears from the most recent Mental Health Review Tribunal decisions, that possible accommodation for TP in the community has now been identified, but that it is not available to her yet, requiring as it does that another person be moved from that accommodation and that it be modified. In the result, in its repeated assessments the Mental Health Review Tribunal has remained of the view, consistent with that of her treating psychiatrist, Dr Watt, who reported again on 1 October 2015, that TP still requires long term placement in a secure facility, that she must continue to be housed at Silverwater.
26. That is consistent with observations in Mr Ardasinski's report, that those who have known and observed TP over the course of the past 12 years, have observed a deterioration in her condition since the index offence, which he was concerned might not be capable of reversal, even with further treatment. That unquestionably requires further investigation, given other material in evidence, including the observations of Whitford DCJ as to the volatile combination of factors which had led TP to her most recent, serious offending. That, his Honour considered, gave rise to considerations as to the need to protect both the community and TP herself, including by ensuring her residence in secure accommodation, which would ensure that both she and the community are protected (see at [23]).
27. On all of this evidence, there could be no question that if proved at a final hearing, the making of an extension order in respect of TP would thereby be justified.
28. In the result, I was satisfied that the interim order sought should be made, ensuring as that does, the Tribunal's continued management of TP, her challenging behaviours and the undoubted significant risk which they generate both for her and others, pending final determination of the Attorney General's application, after the further assessments which the interim orders made will require.

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: 09 November 2015