The sad facts of the life of Mr Brendan Bragg ('the defendant') are recounted in detail in two judgments of this Court: see Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439; Attorney General for New South Wales v Bragg (Final) [2021] NSWSC 1054. They are readily available online. None of the facts or evaluative judgments therein are impugned. Accordingly, with the consent of the parties, I shall avoid unnecessary repetition in this judgment.
The defendant is a man who is approaching 40 years of age. He is of First Nations background, born into great hardship and disadvantage. He grew up on the South Coast of New South Wales. From an early stage an intellectual disability became apparent, because he was placed in special classes at school. That intellectual disability is in truth severe, and I am well familiar with the way in which the standard taxonomy - whereby he is judged to suffer from a "mild or moderate" intellectual disability - can be misunderstood. Not only is it severe, but it is also permanent.
From an early stage he commenced using alcohol and, at the least, cannabis. He has been supported by way of a disability support pension for many years.
From an early stage as well he commenced to intersect with the criminal justice system. That is detailed in earlier judgments; again, I shall avoid the sin of repetition. But suffice to say that that criminal record demonstrates that he has possessed an entrenched sexual attraction to children, and a readiness to act upon it. Indeed, as recently as last year the defendant was honest enough with a psychiatrist to accept that that attraction remains, although his sexual attractions are not limited to children.
Over the years he received a number of lenient sentences, no doubt because of his compelling subjective features. He became subject to restrictions upon his liberty as a result of his convictions, pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ('the CPOPO Act'). Eventually, he was accused of serious sexual offences against, and to do with, his step‑daughter, then well under the age of consent. He was found unfit to stand trial. Ultimately, a number of offences were found "proven" against him. Accordingly, at the conclusion of two special hearings he became a forensic patient.
Judge Ellis, whose experience in criminal law is well‑known, imposed a limiting term of 3 years 10 months, to date from 2 July 2017 and expire on 1 May 2021. In the remarks on sentence, his Honour spoke of it being a little difficult to be entirely positive about the rehabilitation of the defendant.
As a result of the imposition of that limiting term, the defendant came under the care of the Mental Health Review Tribunal ('the Tribunal'). As is well‑known, there was no non‑parole period available to him. Having said that, he was able to be released at any time within the judgment of the Tribunal. Indeed, he was released in 2020 on conditional liberty.
An application for an extension of his status as a forensic patient pursuant to the relevant legislation led to a preliminary hearing before Wright J, and a final hearing being Ierace J. Ierace J imposed an extension of the status of the defendant as a forensic patient of 2 years 6 months, which will expire on 30 January 2024.
[3]
Application and determination
The plaintiff has commenced proceedings pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ('the Act') by way of summons seeking to renew that extension; the preliminary hearing came before me today.
The defendant appeared by way of a tutor, and was represented by solicitor and counsel. It was conceded by his counsel that all mechanistic statutory preconditions for the making of a preliminary order are established, and I accept that concession. The order itself is neither consented to nor opposed, and of course whatever the position of defence counsel, it remains a matter for my own satisfaction.
Turning to the crucial question posed by s 122 of the Act: I am satisfied that there would be an unacceptable risk of the defendant causing serious harm to others if he were to cease to be a forensic patient. Furthermore, I believe that there is no basis for me to exercise a discretion not to impose the interim order that is sought. I say those things for the following reasons.
First, although it could be said that the defendant, bearing in mind all of the difficulties with which he is confronted, has been proceeding in the community reasonably well, his progress has been by no means perfect.
For example, there was an escapade whereby he left his accommodation overnight for many hours.
Periods when he has been out and about in the community have been problematic. One of those periods has led to the imposition of an apprehended domestic violence order against him.
As well, sadly I was told today from the Bar table that, very recently, he was placed back in involuntarily detention, imposed by the Tribunal, in a mental hospital, as a result of an allegation that he has breached his conditional liberty.
In short, his conditional liberty has been a bumpy road.
Secondly, his sexuality continues to be disinhibited and extremely problematic, as follows.
He has admitted recently, as I said, continuing arousal at the thought of children.
He engaged, it seems, in a spontaneous sexual encounter with another male in a public toilet.
On another occasion, he seemingly invited a stranger back to his accommodation (in a group home) with the intention of the defendant performing oral sex on that person for money.
When out and about with his carers, he has been seen to be staring and seeking to be in physical proximity with other persons, including children.
Relatedly, it is noteworthy that the defendant has refused the application of anti‑libidinal medication.
Thirdly, it is well‑known to the courts and Australian society generally that child sexual assault can have devastating and longstanding - if not permanent - psychological impacts upon its victims. In other words, in reflecting on the "risk/consequences" analysis discussed in cases such as State of NSW v Ceissman [2018] NSWSC 508 (per Rothman J) and Attorney General of New South Wales v Kereopa (No 2) NSWSC 928 (per R A Hulme J), the consequences here, in the sense of the risk coming to fruition, are very pronounced.
Fourthly, it is true that there are some other constraints upon the liberty of the defendant. As explained today, a guardianship order that is in place, combined with conditions or consequences of his NDIS funding, have aspects of compulsion. It is also true that, if no order were made, because of that funding this man would not be alone in the community, bereft of help. Finally, there are also the obligations pursuant to the CPOPO Act arising from his convictions that impose a degree of restraint.
But as counsel for the plaintiff submitted, I think that those structures are not designed to, and would not, provide the degree of structure underpinned by sanction necessary here.
Fifthly, as one would expect the defendant has been seen by very many psychiatrists and psychologists over many years. I do not think it necessary to go into detail, except to say that he is not suffering from a mental illness as defined by statute, and also to say that the overwhelming opinion of experts, including most recently of Dr Farrah, is that the defendant presents - at the least - a significant risk of reoffending sexually if not subject to an order.
Sixthly, the defendant is suffering from significant psychological distress, and it has been getting worse recently. His, I believe, has been and is a lonely, melancholy life: very little family support; burdened by illiteracy; very often taken advantage of by others; and no doubt unable to understand much of the world around him, as a result of his disability. So great is his distress that he has made two suicide attempts recently, one of them serious. I recount that distress not to blame the defendant, of course. I do so simply to state my opinion that a person suffering in that way is likely to be more psychologically unstable than otherwise, which I regard as a significant criminogenic factor.
[4]
Conclusion
In short, seeking to address concisely the factors mandated for consideration pursuant to s 127 of the Act: the safety of the community is a very real issue here. The expert reports strongly support an interim order. The decisions of the Tribunal, including the most recent adverse decision, point in the same direction. So do other reports from sundry other sources. So does the less than satisfactory compliance by the defendant with his obligations over the past many months. And so does the note of caution from the sentencing judge quite some years ago, in that it is congruent with my own thoughts today.
In short, I am comfortably satisfied that an interim order should be made. I am also satisfied, as I have said, that there is no discretionary basis to refuse the interim relief sought. For those reasons, I shall make the orders sought by the plaintiff today, including those ancillary to an informed final hearing.
[5]
Orders
I make the following orders:
1. An order pursuant to s 126(5) of the Mental Health and cognitive Impairment Forensic Provisions Act 2020 ("the Act")
1. Appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) 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 by the Court; and
2. Directing the Defendant to attend those examinations.
1. An order pursuant to ss 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing on 31 January 2024 for a period of three months.
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Decision last updated: 20 November 2023