Attorney General of New South Wales v Wright

Background to the Plaintiff's Application

1. The defendant is a 28-year-old man, with the status of a forensic patient. Since his Honour Justice Wright imposed the IEO on 5 May, the defendant was reviewed by the Mental Health Review Tribunal ("the Tribunal"). On 24 June 2022, the Tribunal made orders for the defendant to be released subject to conditions.
2. The defendant was so released on 1 July 2022, exactly one month prior to the date on which this final hearing was heard in this Court.

Criminal History

1. The defendant's criminal history dates to April 2013, when he was 19 years of age and was charged with certain dishonesty offences for which he received a bond without conviction. His history of violent offending dates to June 2014.
2. In March 2015, the defendant was convicted of an offence of assault occasioning actual bodily harm. The circumstances giving rise to that offending conduct are contained in a police fact sheet relating to an incident that took place on 29 July 2014. The defendant had attended the victim's home in the company of a female, referred to as the "witness". The witness was intoxicated. The victim asked the witness to leave on several occasions, and grabbed the witness's arm to get her off the couch. It was then that the defendant intervened and punched the victim. He proceeded to push the victim into a television and a glass cabinet in the kitchen. The victim suffered several injuries, and the defendant was charged with assault occasioning actual bodily harm. The defendant received a fine and was placed on a good behaviour bond for two years.
3. On 27 August 2015, the defendant reacted violently when police attempted to exercise search powers, suspecting he was in the possession of a prohibited drug. When searched, the defendant in fact had no drugs in his possession but was charged with resisting police in the exercise of their duty. On the same day, the defendant committed an assault against his then partner, Ms Davies. In the context of an argument between the defendant and Ms Davies, he yelled at her, threatened to confront her, threw a can of drink at her, and pulled her by the throat using a t-shirt.
4. An apprehended violence order ("AVO") was issued following this offence. On 1 September 2015, the defendant contravened that AVO. The defendant was again granted bail, but, in January 2015, breached the conditions of that bail when he committed an assault against his previous partner, Ms Brown, who he punched and kicked several times in the course of an argument.
5. On 10 February 2016, the defendant received his first term of full-time imprisonment in respect of resisting an officer in execution of their duty, common assault, and contravening the aforementioned AVO. While serving those concurrent sentences (each 12 months' imprisonment, with a non-parole period of 6 months), he was found guilty of assault occasioning actual bodily harm and intimidation of Ms Brown.

Index Offences

1. The index offending comprises of three offences committed by the defendant in 2018.

Assault with intent to rob

1. The first index offence occurred on 11 September 2018, when the defendant and a juvenile approached the victim and asked to borrow his phone. The victim obliged, following which the defendant produced an imitation firearm and threatened the victim. He demanded money and that the victim's phone passcode be changed. A fight between the defendant and the victim ensued, during which the victim was punched and suffered cuts and bruising. The defendant and the juvenile both fled the scene.

The break and enter offences

1. On 12 September 2018, at about 9.30am, the defendant entered the garage of the victim and unsuccessfully attempted to start two motorbikes. He took one motorbike from the garage to the driveway, and again attempted to start it. He was unsuccessful and left without taking anything.
2. About 15 minutes later, at approximately 9.45am, the defendant broke into the garage of a home, confronted the occupant, and demanded the drug ice. He took two motorcycles from the garage, which he could not start.
3. The defendant was armed with a hammer and used it to strike the victim causing bruising. There was a struggle over possession of the bike, but the defendant left the scene without taking anything.

Forensic History

1. On 28 April 2020, her Honour Judge Bright held an inquiry in respect of the defendant's fitness to be tried, finding that the defendant was unfit to be tried for the offences. He was referred to the Tribunal. On 24 August 2020, the Tribunal determined that the defendant was unfit to be tried and would not become fit within 12 months of the Court's finding of unfitness. Three special hearings followed this determination. The second of those special hearings will not be discussed in this judgment, as the defendant was acquitted of the charge.

The first special hearing

1. On 30 April 2021, her Honour Judge Harris made a finding that the defendant had committed the assault with intent to rob whilst armed with a dangerous weapon (a black imitation firearm). Her Honour imposed a limiting term of 3 years and 4 months, commencing on 17 December 2017, and expiring on 16 April 2022.

The third special hearing

1. The third special hearing dealt with the two break and enter offences. Her Honour Judge Norton found that the defendant committed each of those offences, and imposed a limiting term for a period of 3 years and 2 months, commencing on 17 March 2019 and expiring on 16 May 2022.
2. The defendant has served his limiting terms. As indicated above, on 26 April 2022, a preliminary hearing of the plaintiff's summons was heard before his Honour Justice Wright, and on 5 May 2022, his Honour granted the plaintiff interim relief.
3. The plaintiff now seeks a final order, pursuant to ss 121 and 128 of the Act, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of one year from the date of the order.

Mental Health Cognitive Impairment Forensic Provisions Act

1. A "forensic patient" is defined in s 72(1) of the Act as follows: (1) The following persons are forensic patients for the purposes of this Act - (a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place, (b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal, (c) a person who is the subject of a special verdict of act proven but not criminally responsible and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by a court or the Tribunal, (d) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section.
2. The defendant became a forensic patient after a special hearing when he received a limiting term and was "detained in a mental health facility, correctional centre or other place" (s 72(1)(b)). The effect of the interim extension order, made by Justice Wright on 16 May 2022, was that the defendant retained his status as a forensic patient beyond the expiry of that limiting term. He, therefore, remains a forensic patient for the purpose of the Act.
3. Section 121 of the MHCIFP Act empowers the Court to extend a person's status as a forensic patient. Section 124(1) provides that a Minister administering the Act may make an application for an extension order where the forensic patient is subject to either a limiting term, or an existing extension order. The defendant is encompassed in that section by virtue of being subject to an interim extension order.
4. In determining whether an order extending Mr Wright's status as a forensic patient should be made, regard must be had to the objects enunciated in s 69 of the Act. They are as follows: 1. to protect the safety of members of the public; 2. to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment; 3. to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through CTOs; 4. to facilitate the provision of hospital care or care in the community through CTOs for any of those persons who require involuntary treatment; 5. to give an opportunity for those persons to have access to appropriate care; and 6. to protect the safety of victims of forensic patients and acknowledge the harm done to victims.
5. Section 122 sets out the test for when an extension order of a person's status as a forensic patient may be made: 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.
6. The application is to be determined in accordance with Division 3 of the Act: 127 Determination of application for extension orders (1) The Supreme Court may determine an application under this Division 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 section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(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 Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice 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 the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (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.
7. The Court's power to make an extension order is discretionary. Section 127(1) of the Act provides that the Court may determine an application to extend a person's status as a forensic patient by making the order, or by dismissing the application. If an order is made, it may be for a period not exceeding five years from the day on which it commences (s 128(1)(b)). Nothing prevents the Court from making a subsequent extension order against the same forensic patient (s 129). In the present case, the duration of the extension order sought is a period of one year.
8. Section 127(2) (as set out above) lists a number of matters that the Court "must" have regard to in determining whether or not to make an extension order. I note that this list is non-exhaustive, and the Court may also have regard to "any other matter it considers relevant". I will now address the relevant matters in s 127(2) of the Act.

Standard of Proof

1. As stated earlier, the determination of this application turns on whether the offender poses an "unacceptable risk of causing serious harm to others". The Court must be satisfied of this to a "high degree of probability".
2. The term "to a high degree of probability" has been held to indicate a higher standard of proof than the normal civil standard, although it requires less than the criminal standard of beyond reasonable doubt. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..."
3. Section 122 of the Act provides that a forensic patient can be made the subject of an order extending their status as a forensic patient "if and only if the Supreme Court is satisfied to a high degree of probability" of certain matters. It is also appropriate to refer to the caution expressed that an order may be made "if and only if" the Court is relevantly satisfied. McClellan CJ at CL stated in Attorney General v Gallagher [2006] NSWSC 340 that those words "emphasise the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty".

First Limb - Unacceptable Risk of Causing Serious Harm to Others

1. At present, the legislation does not define the term "unacceptable risk". However, the term has been held to have the same meaning under the MHCIPF Act as it does under the Crimes (High Risk Offenders) Act 2006 (NSW) ("HRO Act"). Some insight into the term is provided by s 5D of the HRO Act, namely, that in determining risk: …the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
2. The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the HRO Act. Basten JA stated in Lynn v State of New South Wales (2016) 91 NSWLR 636 at [126] that: "The nature of the risk … had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders."
3. The meaning of an "unacceptable risk" in s 5B(d), and the principles which are to be applied, were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] as follows: "[23] As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). (c) While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO."
4. Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 observed at [71] that "unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate" (see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15]).
5. In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J noted at [14]-[17] that there is a "matrix of considerations" relevant to the risk assessment, and two important matters are "the probability or possibility that the risk will manifest" and "the seriousness of the harm that will ensure if the risk were to manifest." It is possible that a risk is unacceptable because of the severity of the harm that would be caused by its eventuation, rather than because of its likelihood: see State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73]; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43].
6. The determination of whether there is an unacceptable risk is a discretionary exercise. I must make an assessment based on the likelihood of a risk eventuating, and the potential consequences if it does eventuate.
7. It is apt to note that the right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an "unacceptable risk". However, consideration of an offender's circumstances, including the offender's right to liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: see Lynn at [44] per Beazley P, at [131] per Basten JA and at [149] per Gleeson JA.
8. The meaning of "serious harm" has also been considered by this Court extensively. RA Hulme J in Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928 said that "serious harm" could concern either physical or psychological harm (at [16]). His Honour accepted the submission that in the event that the harm is physical, it does not have to satisfy the threshold of "grievous bodily harm" but must be more than "actual bodily harm", while if the harm is psychological, it must be "something more than emotions such as fear or panic".

Second Limb - The Risk Cannot be Adequately Managed by Less Restrictive Means

1. Section 122(1)(b) of the MHCIFP Act requires that the Court consider whether the defendant's risk to the community may be managed by "less restrictive means". The plaintiff bears the onus of proving the risk cannot be managed by less restrictive means. This must also be proved to a high degree of probability.
2. In light of the respective positions of the parties, it is not necessary to deal with the second limb in any great detail. The real issue in these proceedings is whether the plaintiff can establish, to the requisite standard, that the applicant presents an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.
3. The plaintiff submitted that if the Court is indeed satisfied that there is an unacceptable risk, then that unacceptable risk cannot be adequately managed by other less restrictive means. The plaintiff further submitted that any reference by the Court appointed experts to consideration of a Guardianship Order for the defendant should be understood as a "wise" additional measure that could be considered in the management of the defendant in a global sense; it should not be considered as an alternative, less restrictive, means of managing the risk.

Expert Evidence

1. Two Court appointed experts, Dr Katie Seidler and Dr Kerri Eagle, reviewed the defendant and provided expert reports, including supplementary reports, to the Court. In addition, there was a volume of psychological and psychiatric material tendered, including the reports of Dr Calum Smith, who gave evidence during the proceedings for the interim extension order.
2. The defendant had not at that stage been released to the community. Dr Smith agreed that the defendant's risk of reoffending could significantly reduce if an appropriate set of resources were at his disposal upon his release.

Report of Dr Kerri Eagle, dated 1 July 2022

1. Dr Eagle interviewed the defendant over two sessions, on 20 June 2022 and 27 June 2022. The opinions she presented in her report are based on those interviews as well as the documents she was provided in conducting her assessment.
2. Dr Eagle asked the defendant about the index offences, and recorded his response as follows: "He said 'one person owed me money.' He said it was a drug deal. He said the victim was not a stranger. He said 'nothing was taken' and that it was 'over drugs.' He denied carrying an imitation firearm. He was asked why the offences occurred and he said 'just sort of happened … who with.' He was asked if he had used drugs and he said 'yeah' and 'a bit of everything, heroin, ICE.' He said he could not remember much about the offending."
3. When asked about the factors of his offending in the second interview, the defendant responded as follows: "He said 'I can't really remember.' He said he had difficulty recalling the details. He said 'I remember I took drugs.' He said he believed it was a drug deal. He said he could not recall having an imitation firearm. He said he had not carried such a weapon. He said he had played with them."
4. In respect of the aggravated break and enter offence, Dr Eagle recorded that the defendant stated: "He said 'he owed me ICE and that's why he got the shits.' He said he was 'on a couple of things.' He said he had taken ICE, heroin G and Xanax (alprazolam). He was asked about having a hammer and said 'I don't remember that. If I hit someone with a hammer, they would have a bit more than bruising on them.'"
5. Dr Eagle determined that the defendant did not appear to have signs of a major mental illness, but opined that he: "…has demonstrated emotional regulation difficulties, poor impulse control and frustration tolerance, relationship difficulties and maladaptive coping mechanisms that are likely related to his childhood experience of trauma and the absence of stable primary caregivers. It appears unlikely that [the defendant] has a bipolar I disorder. He may satisfy criteria for a bipolar II disorder, although it appears more likely that mood disturbances are due to [the defendant's] substance abuse and enduring trauma related psychological vulnerabilities."
6. In developing the defendant's "enduring trauma" and "psychological vulnerabilities", Dr Eagle opined that his presentation was "consistent" with the syndrome known as complex post-traumatic stress disorder ("PTSD"), and, in particular, stated: "[The defendant] has reported persistent anxiety in various domains. He has demonstrated avoidance of addressing previous trauma through substance use, and he has demonstrated hyper vigilance and paranoia that are likely trauma related (rather than psychotic)."
7. Dr Eagle also recorded that the defendant has a mild intellectual disability, as well as a "substance use disorder" which was in remission on maintenance therapy in a controlled environment. Dr Eagle opined that the defendant has engaged in "problematic use of alcohol", and that "[h]is substance use would exacerbate his psychological vulnerabilities, impair his judgment and has contributed to his offending behaviours."
8. Dr Eagle concluded that the defendant would "satisfy the criteria" for antisocial personality disorder: "…[h]aving regard to his offending behaviour, his history of impulsivity and irresponsibility, irritable and aggressive behaviours, a reckless disregard for the safety of others and lack of remorse. His childhood experience appears to reflect behaviours consistent with conduct disorder, noting his reports he was expelled and got into trouble, albeit these behaviours occurred in the context of significant adversity and learning difficulties. [The defendant's] pattern of behaviour and personality traits likely directly arise out of a combination of his exposure to repeated trauma from early childhood, poor role models, significant disruption to his emotional and educational development and his intellectual disability. [The defendant's] judgment and capacity to reason as to his behaviour is impaired by the deficits resulting from his intellectual disability."
9. Against that background and formulation, Dr Eagle conducted an assessment of the defendant's generalised risk of violent offending. Dr Eagle noted in her report that the defendant had a "high loading of historical risk factors", and a "moderate" loading of "clinical factors" which are potentially changeable or modifiable by intervention. Furthermore, Dr Eagle considered the likely challenges the defendant would face in responding to any risk management plans, but in particular noted that: "[The defendant] has few internal protective factors, given his intellectual disability and childhood experiences. He also has limited motivational factors. He has articulated some life goals including to seek employment and establish a business. He has a supportive family, with stable living circumstances available to him. If he were to continue to be a forensic patient, the level of external control available would be an additional external protective factor."
10. When Dr Eagle was asked to specifically opine as to the nature of the defendant's risk, and whether he posed a risk of causing "serious harm" to others, she stated: "[The defendant's] violent offending has not resulted in lethal or potentially lethal harm to others. His most serious offence appears to have resulted in actual bodily harm to the victim. However, the nature of [the defendant's] offending, particularly the use of weapons, significantly increases the risk of causing serious harm to others. He has used a hammer to assault a victim during an altercation. He has acknowledged regularly carrying a knife, sometimes to protect himself increasing the risk of serious harm if an altercation were to occur. [The defendant's] risk of violent reoffending is most likely to occur if he relapsed into substance abuse. Unfortunately, given his lengthy history of substance abuse in the community, including during periods under supervision, his risk of relapse is high following release into the community. It is unclear at this stage what access [he] would have to drug and alcohol rehabilitation services, and to what extent he is prepared to engage with those services. It is also unclear to what extent his substance abuse difficulties may be moderated by living with his sister and her family. At this stage, given those uncertainties, I am of the view that [the defendant's] risk of relapsing into substance abuse and in that context engaging in violence that has the potential to cause serious harm to others would be elevated when compared to the average offender. [The defendant's] primary risk factors for violence increasing his risk on release include his substance use disorder, emotional instability, cognitive deficits, peer influence and relationship difficulties. If [the defendant] is able to achieve a stable prosocial lifestyle involving employment, positive family relationships, a stable living situation and engage with professional supports, his risk of relapse into substance abuse and reoffending would reduce. In the absence of any external control, I am of the view that [the defendant] is unlikely to be able to achieve a stable prosocial lifestyle."

Supplementary Report of Dr Kerri Eagle, dated 26 July 2022

1. Dr Eagle provided a supplementary report intended to be read in conjunction with her report dated 1 July 2022. The purpose of the report was to address whether supplementary material provided altered her opinion as evidenced in her 1 July 2022 report.
2. Importantly, the supplementary information provided to her included:

• The MHRT order for conditional release dated 24 June 2022;
• The Community Safety Program (CSP) transition management plan dated 29 April 2022;
• NDIS plan approval, showing that the defendant was approved for $144,282.62 of NDIS funding for supports over 12 months; and
• Correspondence from the CSP to the MHRT dated 17 June 2022, describing the support services to be available to the defendant when released including 6 hours of support during the week and 3 hours of support on the weekend.

1. Dr Eagle noted that the opinions provided in her previous report were unchanged, and she remained "of the opinion that [the defendant] would benefit from the continuation of his forensic order for a period of 12 months to ensure he is able to engage with supports, avoid substance use and establish a prosocial lifestyle".
2. Dr Eagle noted that the defendant was released into the community on 1 July 2022 on conditions set by the MHRT. She remained of the view that given the defendant's previous experience of supervision, he would benefit from external oversight of the MHRT during his transition to the community. Dr Eagle was concerned that the defendant would be at an increased risk of disengaging from supports, relapsing into substance use and "reoffending" in the absence of those conditions, particularly during his early release.

Report of Dr Katie Seidler, dated 1 July 2022

1. Dr Seidler's opinions were formed from the documentation provided to her and from an interview she conducted with the defendant by means of AVL on 20 June 2022.
2. Dr Seidler noted that in that interview that the defendant was guarded, and: "…impressed as someone who is unsophisticated cognitively, commensurate with an intellectual disability and therefore, he is not a psychologically minded person, nor does [the defendant] seem to have much insight or reflective capacity. He was also a generally poor historian. Nevertheless, his manner was pleasant and there was no evidence that [the defendant] was agitated or frustrated by the process."
3. Dr Seidler recorded that the defendant: "…acknowledged that substance abusing associates have been a significant risk for him in the past with respect to his own drug use. Given his past association with these people I asked [the defendant] how he might stay away from such people in the future if he is to remain drug abstinent. [The defendant] stated that he would not go to see these people in the community or he would make an excuse not to be around them if needed."
4. The defendant was also asked about his use of alcohol and illicit drugs: "[The defendant] described his use of alcohol as being variable and dependent on his mood. As such, [the defendant] offered that he has had periods of abstinence from alcohol but he has also abused alcohol heavily on a daily basis for other periods of time. [The defendant] told me that he likes to have a beer or two after work, which he enjoys…[he] could not explain what would motivate his drinking or how his mood specifically impacted on his consumption of alcohol…." "…[The defendant] started using crystal methamphetamines at about age 16 and he described his use of this drug being recreational in nature and occasional for the most part. However, [the defendant] also noted that he has used amphetamines more heavily in a binge fashion, especially to help him stay awake he was homeless. [He] does not believe he was dependent on amphetamines but he apparently did use this drug intravenously. [The defendant] was unsure whether he last used amphetamines a year ago or a few years ago. [The defendant] reported to have begun using heroin at about age 22 and he identified this both as his drug of choice but also the substance in relation to which he has suffered the strongest dependence. [He] stated that he would use heroin intravenously on a daily basis and as many times a day as he could depending on the amount he could access. [The defendant] noted that he has relapsed with heroin every time has been in the community and he continued to abuse this substance heavily until he was arrested for the index offences."
5. The defendant was also invited by Dr Seidler to identify his own understanding of his "risk/triggers" for relapse into drug abuse: "…[H]e only identified being homeless as a risk in this regard. With prompting, [the defendant] added that being around people who are using drugs would also be a risk for him but he could not identify any other factors that might precipitate a relapse for him. This is concerning, especially given the significance of [his] past drug use and abuse and the strong connection between his substance abuse and offending behaviour. With respect to the strategies that [the defendant] used to cope with high risk situations so as to maintain abstinence, he identified the following: Stay away from people who use drugs, Remain on Bivudal treatment, and Use his will power [The defendant] also noted that he intends to focus on work and seeing his children to assist in remaining motivated for drug abstinence. [The defendant] told me that he does not want to return to drug use in the future and he attributed this to his desire to spend time with his children. [He] was unsure whether he would benefit from any future intervention with respect to substance abuse and claimed that he will manage abstinence by simply staying away from drugs, whilst also remaining on the Bivudal/Buprenorphine treatment. [The defendant] also suggested that he would be prepared to do a residential rehabilitation programme if he started to use drugs again."
6. In relation to his offending behaviour in general, and the index offending in particular, Dr Seidler recorded the following: "[The defendant] could not identify his motivations for engaging in antisocial behaviour and he claimed to have been arrested previously for crimes committed by others. [He] also could not articulate why he has engaged in offences of violence before. With respect to the index offences, [the defendant] claimed that he cannot remember much about these. However, he reported that the victims were drug dealers and owed him drugs. [The defendant] offered that he is 'not happy' about his offences but he 'can't turn back time'. I asked [him] why he is not happy about his behaviour and he claimed that he 'wouldn't like it to happen to me'. In response to specific questions, [the defendant] stated that he is unsure what his risks are with respect to future offending. When prompted further, [he] identified that being homeless would be a criminogenic risk for him, as would 'hanging around the wrong people' because it is apparently 'easy to get caught up in stuff' for him. [The defendant] could not identify any other risks for crime and even when I asked him specifically about whether drug use would be a risk for crime, he suggested that he is unsure."
7. Dr Seidler stated that: "It was difficult to gauge any insight from [the defendant] with respect to his understanding of criminogenic risks and future relapse prevention. He seemed to find it hard to identify risks and even when prompted, tended to identify that [he] is unsure about the relationship between possible risk factors and his offending."
8. Dr Seidler opined that: "In sum, risk assessment for [the defendant] suggests that he poses a [h]igh risk for both future criminal conduct and future violent offending. He presents with a range of factors that contribute to this risk, including [his] intellectual disability and the various impacts that this has on his functioning, in addition to his avoidant coping style, the entrenched nature of [the defendant's] substance abuse, his antisocial peer connections and attitudes, his lack of investment in a prosocial and structured community routine, [his] impulsivity and self-regulation skills deficits. Taken together, this risk assessment indicates that [the defendant's] criminogenic needs are significant and long-standing. It is my opinion that [the defendant] lacks the insight, skills or resources to manage these risks independently and therefore, without structured and comprehensive supervision, case management support and intervention, it is highly unlikely that his risks will be managed to an extent that future offending may be avoided. Further to this, given his criminal history, which includes repeated episodes of violence, [the defendant] is considered to remain at high risk for future violent offending and it is possible that any such offending may reach the threshold to be considered a serious offence under the relevant Act. This violence maybe directed at authority figures, future partners or others with whom he comes into connection, including those unknown to him."
9. Dr Seidler also directly addressed the question of the "nature and level of risk" that the defendant poses: "Succinctly, it is my opinion that [the defendant] poses a high risk of future reoffending, which includes the risk of both generalised antisocial conduct and future violent offending and it is possible that any future violent offending may reach the threshold to be considered a serious violence offence, with there being a range of possible victims of such offending. The primary factors contributing to this risk pertain to [the defendant's] impulsivity, his poor emotional coping and self-regulation skills, in addition to his serious substance abuse and antisocial attitudes."

Supplementary Report of Dr Katie Seidler, dated 27 July 2022

1. Dr Seidler provided a supplementary report on 27 July 2022, to be read alongside the above report dated 1 July 2022.
2. The purpose of the supplementary report was for Dr Seidler to review a number of documents and determine whether they altered her original assessment or recommendations. Dr Seidler noted that at the time of her 1 July 2022 report, the defendant was in prison, and, at that point, she was concerned about the lack of information before her as to his post-release plans from prison. She was "of the view that the quality, scope and integrity of these plans would be crucial in understanding the degree to which [the defendant's] risk could be managed in the community." In her supplementary report, she comments that it was "heartening" to see the comprehensive plans that have been developed for the defendant.
3. She opined that: "… the plans that have been developed for Mr. Wright are fairly standard for a person with his needs and level of functioning and cater to his basic life needs, routine, social connections, employment and intervention needs. The level of drop in support recommended may be appropriate for [the defendant's] disability and functional capacity but it will be insufficient to structure his time and routine to any great extent."
4. She stated: "In my report dated 1 July 2022, I suggested that without structured community based case management support and supervision, in addition to a structured personal routine and ongoing professional mental health support, Mr. Wright would continue to pose a high risk of future offending behaviour and that this risk would not be adequately managed in the community. The documentation on the plans and supports provided to me address this issue. As stated above however, my remaining concern is that the professional interventions will take some time to produce changes for [the defendant] and therefore, there will continue to be an appreciable level of risk to the community for some time to come."

Submissions on behalf of the plaintiff

1. In written submissions, Counsel for the plaintiff put the "ultimate submission" as follows: "… the updated materials, and in particular the two reports prepared by Dr Kerrie Eagle and Dr Katie Seidler, would in combined effect satisfy this Court of the central test contained in s. 122 of the Act 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."
2. The plaintiff acknowledged that there is a "level of generality" to the risk assessment conducted by the experts, and that the test in s 122 of the Act is not one of generalised reoffending, but is one of causing "serious harm".
3. The plaintiff submitted, however, that the defendant poses a risk of serious physical or psychological harm. Judge Harris noted that the fact that the defendant's use of a hammer in the index offending did not result in "serious harm" was a result of "luck and not design". The plaintiff adopted this language, submitting that the defendant, particularly when using drugs, poses a risk of serious harm to others, even if that serious harm did not eventuate in the previous offending.
4. It was also submitted that the defendant's prior use of an imitation firearm could "give rise to an unacceptable risk of causing serious harm in a psychological sense". The plaintiff has a further offence on his criminal record of unlawfully possessing knives; however, it was conceded in oral submissions that details of this offence are not before me, and there is no suggestion that he used a knife, or knives, to threaten or harm others. Nevertheless, the plaintiff submitted that this offence evidences a willingness to use implements such as knives, and in combination with his prior offence involving a hammer, points to the risk he poses to the community.

Submissions on behalf of the defendant

1. The defendant submitted that while there can be little doubt that the defendant's risk of any reoffending is related to the risk of his relapse into drug use, the risk analysis is an imperfect science, the limitations of which are recognised by the experts.
2. It was submitted that the expert opinions, expressed on the basis of a number of contingencies, would not be sufficient to satisfy the Court to the high degree of probability required that the defendant poses an unacceptable risk of causing serious harm to another person.
3. The defendant made submissions against placing disproportionate weight on the treatment plan that has been formulated to assist the defendant's return to the community. It was submitted that the fact the risk posed by the defendant would be further reduced by implementing a treatment plan, does not itself resolve the question of whether there is at present an unacceptable risk of the defendant causing serious harm to another person.
4. The defendant submitted that to decide whether a risk is unacceptable based on the fact that an offender may benefit from supervision, is to somewhat misstate the applicable question. The question is whether or not, in the absence of such supervision, he is an unacceptable risk of causing serious harm to another person.

Consideration

1. A determination as to whether something is unacceptable is an evaluative task undertaken within the context of the objects and purposes of the Act. The objects and purposes of the Act include the safety and protection of the community.
2. The expert evidence clearly establishes that the defendant poses a risk of generalised reoffending. The question is whether the plaintiff has discharged its onus by establishing that the defendant poses an unacceptable risk that he will cause serious harm to others if he ceases to be a forensic patient.
3. Dr Eagle acknowledged that the tools available to assess the defendant's risk of "future offending" were designed to assist in the assessment of "actual, attempted or threatened infliction of actual bodily harm on another person". In applying the most recent version of the professional judgment tool, the Historical Clinical Risk Management-20, Dr Eagle noted that the defendant had a "high loading of historical risk factors" and a "moderate" loading of "clinical factors", which are potentially changeable or modifiable by intervention.
4. In providing a risk formulation, Dr Eagle had regard to the defendant's previous violent offending, the fact that the violence occurred in the context of intoxication with illicit substances, and the fact that the defendant's violent offending behaviour arose against the background of a significantly disadvantaged childhood.
5. It was accepted that the defendant's violent offending did not result in lethal, or potentially lethal, harm to others. However, Dr Eagle had regard to the fact that the defendant's use of weapons "significantly increases the risk of [him] causing serious harm to others". The plaintiff relies upon the risk of serious physical, as well as psychological, harm.
6. It is undisputed that the defendant has a criminal record which includes matters of violence. The index offences involved the use of a weapon to intimidate and assault his victims. On one occasion, he was in possession of a replica firearm and, on another occasion, a hammer. Although the implements had the potential to cause serious physical and psychological harm, serious harm was not occasioned.
7. In so far as his history of possessing knives is relied upon by the plaintiff in the assessment of risk, little weight can be placed on this factor given that the defendant did not use the knives to threaten or intimidate anyone. In respect of two of the offences he was dealt with by way of conviction with no other penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). On the third occasion, he was dealt with by way of a fine of $200.
8. The defendant did not impress as a particularly reflective or insightful individual when interviewed by the experts. That observation must be considered in the context of his intellectual disability and the various impacts it has had on his functioning. The defendant identified a number of strategies that, although unsophisticated, he could use to cope with high-risk situations so as to maintain abstinence. He identified the following strategies when interviewed by Dr Seidler: "stay away from people who use drugs"; "remain on Bivudal treatment"; and "use his will power". The defendant identified being homeless as a trigger for relapse into drug abuse.
9. Dr Eagle observed that the defendant's primary risk factors for violence include his substance use disorder, emotional instability, cognitive deficits, peer influence and relationship difficulties. Dr Eagle opined that "if [the defendant] is able to achieve a stable prosocial lifestyle involving employment, positive family relationships, a stable living situation and engage with professional supports, his risk of relapse into substance abuse and reoffending would reduce. In the absence of any external control, I am of the view that [the defendant] is unlikely to be able to achieve a stable prosocial lifestyle".
10. The defendant was released into the community on 1 July 2022. He resides with his sister and her family. He is employed as a labourer at a scaffolding company, working at least three days per week. The defendant has remained abstinent. Importantly, the terms of the NDIS plan are not contingent upon his status as a forensic patient. Over $144,000 of NDIS funding for core and capacity supports, including a number of hours of support during the working week and on the weekend, has been secured.
11. The Tender Loving Care Pty Ltd ("TLC") Support Service Agreement, dated 2 June 2022, sets out the proposed services and supports. A document entitled "Matthew Wright Progress Report", dated 27 July 2022, and a roster which identifies the allocated support worker and hours of support for each day in July, provides some further detail about the defendant's progress. Ms Lisa Baron, TLC support worker, reports that the defendant has made some progress including obtaining his driver's licence and birth certificate. He is working towards maintaining his fitness and improving his literacy.
12. I accept, as submitted by the defendant, that a consideration of whether the risk would be further reduced by the imposition of mandatory conditions, does not resolve the question of whether the defendant is an unacceptable risk of causing serious harm to another person. However, an examination of the strategies that have been put in place since the defendant's release to the community is relevant to an assessment of the level of risk.
13. The opinions of each of the experts is heavily contingent. Each expert appears to reason that if the defendant relapses into drug use, he is highly likely to relapse into offending, and that offending may include violent offences. Dr Seidler opines that the defendant poses a high risk of future offending, and it is "possible that any such offending may reach the threshold to be considered a serious offence under the Act" (emphasis added).
14. A fundamental consideration in determining whether the plaintiff has discharged its onus, is whether the material establishes that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. A risk of generalised offending does not satisfy the statutory test.
15. In considering the question of whether the defendant poses an unacceptable risk of causing serious harm to others, I give the words "unacceptable risk" their ordinary meaning. I have also had regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey [2015] NSWSC 1983 at [43] as follows: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable."
16. Taking all of the material before me at its highest, I am satisfied that the defendant poses a risk of engaging in further general criminal activity if not supervised. Despite this, I am not 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 forensic patient.
17. Although the Tribunal has a monitoring role and can enforce the supervisory conditions attached to the defendant's status as a forensic patient, the defendant's supports in the community are provided primarily through the NDIS plan and his family.
18. It is regrettable that the defendant was not afforded a period of supervision in the community prior to the expiration of his limiting term. Such supervision would have allowed for monitoring of the defendant's progress in the context of positive family relationships, employment, stable accommodation and engaging with professional supports.
19. There is no statutory basis to extend the defendant's status as a forensic patient unless I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others. I am not so satisfied.

Orders

1. Accordingly, I make the following orders: 1. The plaintiff's summons is dismissed; and 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 this 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. 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: 05 August 2022