Attorney-General of New South Wales v Williams

Supreme Court of NSW|2022-01-28|Before: Garling J, Davies J

Judgment

On 24 September 2021, the Attorney General filed a summons seeking various forms of relief pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"). On 28 October 2021 Justice Davies made an order pursuant to the Act that the status of the defendant as a forensic patient be extended from midnight on 5 November 2021 for a period of 3 months. His Honour made other orders. His Honour's reasons are to be found in Attorney-General for NSW v Williams (Preliminary) [2021] NSWSC 1362.

Application for Final Order

On Friday, 28 January 2022, I heard an application by the plaintiff for a final order pursuant to ss 121(1) and 127(1) of the Act for the extension of the defendant's status as a forensic patient for a period of 2 years. This judgment deals with that application.

Legislative Power

This Court may make an order for the extension of a person's status as a forensic patient pursuant to s 121 of the Act. The provisions of s 122 of the Act govern the circumstances in which such extension order may be made. That section provides that a forensic patient can be made the subject of an extension order if, and only if, this Court is satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means: see s 122(1).

Submissions and Concessions of the Parties

Having regard to the attitude to the orders sought by the plaintiff taken by counsel for both of the parties, it is unnecessary in this judgment to set out at length the principles which govern this Court's capacity to act and the nature of the discretionary orders which it can make. These are all principles that are well known. Reference was made to those principles in the judgment of Davies J at [2] - [8]. The principles are also set out in other authorities of this Court including: Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041 and Attorney General for the State of New South Wales v Boyce [2017] NSWSC 144.
Counsel for the defendant filed and relied upon extensive written submissions, as did counsel for the Attorney-General.
Counsel for the defendant set out the defendant's position. She noted that the Court is required to be independently satisfied of the matters set out in s 122 of the Act. She noted that the defendant accepted that there was evidence capable of satisfying the Court to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient. She also accepted that there are presently no other less restrictive means by which that risk could be adequately managed. That position did not vary during oral submissions at the hearing of the Summons.
It was made clear to the Court by counsel for the defendant that the only issue which the Court was to be called upon to determine as a contested issue was the period of time for which the extension of the forensic patient status ought to be made. The plaintiff sought an order for a period of 2 years. The defendant submits that a period in the range of 10 to 18 months is reasonable and appropriate.

Discernment

I will refrain in this judgment from recounting the facts which are not contested, and which are accepted as capable of satisfying this Court of the necessary requirements of s 122 of the Act. Put shortly, I accept the expert opinion of Mr Bradley Jones, a forensic psychologist, contained within his expert report dated 14 December 2021, which was admitted without objection, marked as Exhibit 2, and which was unchallenged by any cross‑examination.
Mr Jones expresses the opinion that the defendant poses a risk of causing serious harm to others due to his lack of insight into his past offending, his lack of insight into his mental health disorders and his lack of mental health treatment. I observe that that expression of opinion arises against a background where all experts who have given opinions in this matter conclude that the defendant suffers from a mild intellectual disability, a substance use disorder and that he has a history which suggests that he may meet the diagnosis of an Antisocial Personality Disorder.
Mr Jones goes on to express the opinion, which I accept, that because Mr Williams has not taken any proactive steps to embark upon positive life changes, he continues to present as a risk of causing serious harm to others. I accept this opinion for the reasons expressed by Mr Jones. I also observe that there is abundant unchallenged evidence of factors in the defendant's life that contribute to the risk of serious physical harm occurring. These include past offending, past violent offending, a history of antisocial behaviour, a history of substance abuse arising from adverse childhood experiences, violent attributes, lack of engagement in treatment offered to the defendant and a lack of insight, as I have said, into his past offending behaviours.
What is necessary to reduce the risk of that harm continuing to occur is the defendant's continuing engagement with Community Corrections, the establishment of an intimate relationship, support from family members and future life goals which can be established and maintained.
All of these factors, and in particular the defendant's failure to receive or engage in adequate treatment, suggests that the relevant period should be as long as the plaintiff seeks, namely 2 years.
On the other hand, as the report of Mr Jones demonstrates, the defendant has expressed a desire to modify his past criminal behaviour which indicates a real change from his past attitude. No doubt, the extent of the current period of time as a forensic patient will act as a motivational factor to engage in such treatment in the future. Measures are available for treatment of the defendant whilst a forensic patient in custody, not the least of which is support for continuing drug abstinence and counselling of a kind that would provide a structured transition back into the community. Such measures are under the direct supervision of Corrective Services personnel but are as directed by the Mental Health Review Tribunal. The continuation of the defendant's forensic patient status provides a mechanism to enforce those conditions and the oversight of the Mental Health Review Tribunal is vital in implementing the necessary interventions and supervision requirements.
There is a risk, articulated by Mr Jones and accepted by the Crown, that the longer he spends in custody, the greater is Mr Williams' risk of institutionalisation. I need to bear this in mind because it is a factor which obviously means that any extension order of his forensic patient status ought in this case be moderated to avoid such a consequence.
I should note one complicating factor in the determination of the time for which the Forensic Patient order should be extended. In 2021, the defendant was charged with 3 offences in respect of which he is presently bail refused. They are: a charge of armed robbery; a back-up charge of being armed with intent; and a third charge which is proposed to be dealt with pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) of reckless wounding. These matters are before the Lismore District Court. On the 5 February 2022, there is going to be a hearing as to whether or not the defendant is fit to plead. If he is found fit, a trial will be held in March 2022.
I have not been provided with any evidence which enables me to assess: 1. whether or not the defendant will be fit to plead, 2. what the strength of the Crown case is on the offences, and 3. whether if convicted of one or more offences, it is likely that the defendant would receive a term of imprisonment, or else, if he is found unfit to plead, what limiting term may be imposed upon him.
All of these are unknown including whether the charges will proceed. If the charges do proceed and the defendant is convicted, it is entirely possible he will receive a term of imprisonment greater than the 2 years sought by way of an extension of the Forensic Patient order.
However, although this complication suggests that this application may be futile, such are the uncertainties surrounding what may happen with these charges that I think, notwithstanding that issue, that I should proceed to determine the current application because it has substance and it would be appropriate, to the extent possible, to provide certainty to the defendant.
The short point is, in substance, that the extension order needs to incorporate a suitable or appropriate time for Mr Williams to undertake treatment within the Corrective Services system, as directed by the Mental Health Review Tribunal in order to enable the unacceptable risk of committing further serious offences to be reduced. Such risk will never be removed entirely, but it can be reduced. I accept that that period is one during which the defendant will require ongoing input from the State-wide Disability Services and any amelioration of the risk is dependent upon the Corrective Services resources and programs available for him to undertake.
I have carefully considered what length of time would be appropriate. I note that one factor which I have taken into account, and which is relevant to the period of time, is that the Attorney General is capable of applying, should it be thought appropriate, for an extension of the defendant's status as a forensic patient at any time in the future, and is not limited by legislation to a maximum number of extensions of the defendant's status as a forensic patient. As I have said, much will depend on what happens with the 2021 charges. Much will depend upon what treatment and resource allocation is given to the defendant whilst he is in custody.

Conclusion

Having regard to all of those matters and circumstances, I have come to the conclusion that the appropriate order is that the Forensic Patient status of the defendant should be extended for 12 months. This will provide a reasonable opportunity for the defendant to engage in treatment and rehabilitation. It will also limit the potential for further internalizing the culture and patterns of jail behaviour that are counterproductive to his eventual re‑entry into the community. It will also require the Corrective Services staff to focus on providing the defendant with the necessary treatment and rehabilitation which he needs.
It is also a period which will enable some clarity to emerge with respect to the charges which the defendant presently faces at the Lismore District Court in the early part of this year.

Orders

I make the following orders: 1. Order pursuant to s 121(1) and s 127(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that the defendant's status as a forensic patient be extended for a period of twelve months from today. 2. Order that access to this Court's file be restricted such that access be granted 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 any 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: 18 February 2022

At a glance

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Judgment (9 paragraphs)

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