Attorney General of NSW v Doolan by his tutor Jennifer Thompson

Overview and background

1. In support of the present application, the Attorney relies upon the affidavit of Ms Lucy Nichols, affirmed 3 December 2020, together with Exhibit "LN-1" to that affidavit and the affidavit of Ms Nichols, affirmed 23 December 2020. On 14 December 2020, Ms Jennifer Thompson agreed to act as tutor for the defendant. The defendant relied upon an affidavit of Agnes Dalumpines, affirmed 21 January 2021. The effect of that affidavit was to identify an error in the defendant's criminal history in relation to the 2010 charges, heard by Keleman DCJ. The verdicts recorded for counts 1 and 2 of "not guilty by reason of mental illness" were incorrect. The verdicts for counts 1 and 2 should have been recorded as "not guilty" with the verdict for count 3 recorded as "guilty".
2. The defendant is aged 39 and is of Aboriginal descent. He has been diagnosed with schizophrenia, a neurocognitive disorder, a substance use disorder and an antisocial personality disorder.
3. The defendant has a criminal history that dates back to 1994 as a juvenile. He was subject to control and community orders as a juvenile, the first of which was imposed when he was 13. As an adult, he has a criminal record involving mostly property charges with convictions including larceny, break and enter offences, goods in custody and shoplifting. He faced charges involving threatening conduct of a sexual nature (stalking/intimidating, committing an act of indecency and behaving in an offensive manner in a public place) relating to events which took place in April 2010 in an apartment block in Waterloo and were dealt with by the Local Court under s 32 of the Act.
4. The defendant came before this Court on two occasions (Attorney General of NSW v Doolan [2015] NSWSC 1773 (Doolan (No 1)) and (Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 (Doolan (No 2)). In Doolan (No 1) Adamson J heard an application for an interim extension order under the Act and made the order sought by the Attorney. In Doolan (No 2) Adamson J heard an application for an extension order by the Attorney and found that a final order should be made to extend his status as a forensic patient for five years. It is this order which ceases to have effect on 22 February 2021.
5. In those decisions, Adamson J analysed the evidence before her relating to the defendant up to and including 22 February 2016. In those circumstances, I have concluded that no useful purpose is to be served by me once again summarising the effect of relevant evidence when this has so effectively been done by her Honour in those earlier decisions. I have accordingly included in this judgment substantial extracts of her Honour's findings on the evidence and their applicability to the present application.
6. In relation to the applicant's criminal history, Adamson J made the following findings (Doolan (No 2) at [3]-[61]): "The jurisdiction in the context of the statutory framework The plaintiff's status as a "forensic patient" 3 Section 42 of the Act defines "forensic patients" to include a person who is detained in a mental health facility pursuant to an order under s 24. Section 24 provides for an order to be made with respect to the custody of a person in respect of whom a court has nominated a "limiting term". An order under s 24 was made in respect of the plaintiff on 20 June 2014 when Tupman DCJ nominated a limiting term of three years commencing 13 December 2012 (being the date on which the defendant was taken into custody following the commission of the index offence) following a special hearing in which her Honour found on the limited evidence available that the defendant had committed the offence charged of reckless wounding. The special hearing was conducted as Solomon DCJ found the plaintiff unfit to be tried on 29 July 2013 and referred him to the Mental Health Review Tribunal (the Tribunal) under s 14 of the Act. On 17 September 2013 the Tribunal found the plaintiff unfit to be tried. 4 As a consequence of the s 24 order, Tupman DCJ referred the plaintiff to the Tribunal and ordered that he be detained, as a result of which he became a forensic patient. These matters are addressed in more detail below in the narrative of facts. The provisions relating to extension orders 5 Part 5 of the Act, which deals with forensic and correctional patients, contains s 40, which provides that the objects of the Part include the protection of the safety of members of the public. Section 54A, which is also contained in Part 5, confers power on this Court to make an extension order in respect of a forensic patient who is subject to a limiting term or an existing extension order (which includes an interim extension order): cll 1 and 4, Sch 1. 6 Cl 2 of Sch 1 provides: 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 Schedule 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 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. 7 Clause 7(2) of Sch 1 sets out the matters to be taken into account in determining whether to make an extension order, as follows: "(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. 8 An application for an extension order is required to be supported by documentation that addresses each of the matters referred to in cl 7(2) to the extent relevant, as well as a report by a qualified psychiatrist or registered psychologist that addresses: the risk of the forensic patient causing serious harm to others; the need for ongoing management as a forensic patient and; the reasons why the risk posed cannot adequately be managed by other less restrictive means: Sch 1, cl 5. 9 Clause 6 of Sch 1 provides for pre-hearing procedures. As referred to above, I made orders at the preliminary hearing for medical experts to examine Mr Doolan and furnish reports to this Court. 10 Once an extension order is made, it is for the Tribunal to determine what flows from the order, in terms of care and control of the forensic patient. Thus, if an order is made, the Tribunal determines whether the defendant remains at the Forensic Hospital or lives in another mental health facility or in supported accommodation in the community such as that provided by Community Justice Program (CJP). The background facts 11 Before addressing the factors required to be taken into account by cl 7(2), Sch 1, I propose to summarise the background facts which are germane to an assessment of the risk posed by Mr Doolan and to the ongoing management required. The defendant's criminal history and other matters germane to risk of harm to others 12 The defendant has a criminal history which involves stalking, intimidation and assault of strangers. He also has a lengthy criminal history of larceny and break and enter offences. He was subject to control and community orders when he was a juvenile, the first of these having been imposed when he was 13. 13 In 2010 the defendant was charged with stalking, intimidation and committing an act of indecency and behaving in an offensive manner. He was alleged to have approached a woman who was pushing her 11-month old daughter in a pram. He followed her to her apartment and waited outside her door. He removed his clothes and masturbated. She called the police who arrested him in the stairwell. On 12 August 2011 the charges were dismissed in the Local Court under s 32 of the Act on the basis that the defendant was mentally ill. 14 On 23 March 2010 in Seven Hills, a woman woke at 4.30am to see the defendant standing naked in her lounge room with the light on. The defendant then turned the light off and, when she turned her bedroom light on, she saw him standing in front of her, holding a large kitchen knife above her head. When she asked the defendant what he wanted, he answered, "To have a baby with you." The woman managed to run out through her front door. At the conclusion of a special hearing conducted pursuant to s 23 of the Act, Keleman DCJ imposed a limiting term of 12 months which expired on 26 June 2012. 15 On 14 November 2011, a guardianship order was made by the Guardianship Tribunal, pursuant to which the Public Guardian was appointed as the defendant's guardian. That role was performed by Sean Hosking. 16 Shortly prior to the defendant's release, the Community Mental Health Team (CMHT) at Goulburn was made aware of his imminent discharge from gaol. At the time of his release he lived in supported accommodation in Goulburn arranged by the CJP and Disability Services Australia (DSA). His accommodation was described as "On Site Support Living Model". 17 On 13 July 2012, a fortnight after the defendant's release, CJP Goulburn contacted CMHT to inform it that the defendant was overdue for his (anti-psychotic) depot medication. That day, CMHT contacted Ageing Disability and Home Care Goulburn (ADAHC), which administers CJP. The ADAHC members of staff who were spoken to knew nothing about the defendant. After several further phone calls that day, including to the Tribunal, the Goulburn CMHT eventually found out where the defendant was living from CJP Goulburn. 18 On 16 July 2012 the Goulburn CMHT raised concerns with CJP about not being informed of the defendant's arrival in the area. Shane Flynn of CJP reported that the defendant had been found masturbating in a car. An appointment was made for the defendant to see Professor Cathy Owen, a psychiatrist, at Goulburn Base Hospital. On 17 July 2012 the Goulburn CMHT telephoned Mr Hosking, who returned the call the following day. The view was expressed that the defendant's "challenging behaviour" related to the overdue depot medication. 19 On 20 July 2012 the defendant was seen by Professor Owen. Following the consultation, Professor Owen rang the Tribunal and informed it that the defendant had presented at Goulburn Base Hospital "quite delusional and psychotic" and "with significant risk". A summary by the Tribunal (prepared for its reviews of the defendant) recorded: "Mr Doolan had been placed in CJP ADAHC housing in Goulburn that Professor Owen deemed as entirely unsuitable and isolative. Professor Owen wanted to know if the Tribunal could place Mr Doolan back on his forensic order and force the CJP to find more appropriate housing. It was explained that Mr Doolan was no longer under the legislative provisions of the Mental Health (Forensic Provisions) Act. On 14 August 2012, Pam Cuehlo for ADAHC advised the Tribunal Mr Doolan was not well: there was a problem identified with responsibility for medication in spite of a comprehensive discharge summary provided to Goulburn Base Hospital. No CTO [Community Treatment Order] application was made prior to his release in June 2012." 20 On 24 July 2012 Shane Flynn of CJP rang the CMHT to report that the defendant had arrived back at his home in Goulburn in an intoxicated state and to request information about his medication. The defendant's depot medication was eventually administered on 26 July 2012. 21 On 26 July 2012 Barry Palmer (a Senior Clinical Consultant at CJP) and Wayne Zahra (Acting Clinical Team Leader at CJP) reported to Mr Hosking that the defendant no longer wanted to live in Goulburn and wanted to return to Sydney to have sex with a former girlfriend (who did not want any contact with him) and to have more contact with his mother in Redfern (for the purpose of obtaining money for alcohol). The report continued: "It is the opinion of the CJP [that] if Mr Doolan was to access the Sydney region without support from staff he would be placing himself at risk of recidivism. It [is] therefore a recommendation of the CJP that a coercive function is added to Mr Doolan's current Guardianship Order that would enable DSA to request assistance from the emergency services to retrieve Mr Doolan to [the Goulburn residence] if he were to abscond and place himself at risk." 22 On 27 July 2012 Mr Hosking applied to the Guardianship Tribunal for review of the guardianship order (which incorporated the functions of accommodation, health care, medical/ dental consents and services). He rated the urgency as high and requested an expedited hearing in Balmain early the following week. In support of the application, Mr Hosking wrote: "Should Mr Doolan leave his accommodation concerns are held by service providers in regard to the risk of Mr Doolan re-offending, abusing drugs and alcohol, and failing to access medications and suitable care/accommodation. There is also a concern about the risk this might pose to members of the public given Mr Doolan's offending history. This being the case, the Public Guardian, in consultation with the CJP and DSA, are of the view that a coercive accommodation function is needed in order to maximise the potential for Mr Doolan to remain at his residential placement. The Public Guardian has requested that CJP modify existing management plans and protocols to incorporate the potential use of a coercive accommodation authority." 23 A functional assessment carried out by the DSA Specialist Intervention Services on 30 July 2012 reported: "Bevan demonstrates limited insight and little understanding of the consequences in social settings. For example when discussing relationships with women he clearly does not understand the concept of consent." 24 The Guardianship Tribunal heard the Public Guardian's application for a variation on 1 August 2012 and made orders on that day, including the coercive order sought. The varied accommodation condition read as follows: "a) Accommodation To decide where Mr Bevan Charles Doolan may reside. The guardian may authorise others including members of the NSW Police Force and the Ambulance Service of NSW to:- i) take Mr Doolan to a place approved by the guardian; ii) keep him at that place; and iii) return him to that place should he leave it." 25 In its reasons for decision the Guardianship Tribunal said: "The Tribunal considered the evidence regarding Mr Doolan's repeated statements that he wishes to leave, and also the potentially grave consequences for him and others if he reoffends. In the circumstances the Tribunal decided that it was in Mr Doolan's best interests to limit the risk of this by giving authority to the guardian to authorise others to take Mr Doolan to a chosen place, to keep Mr Doolan at that place and return him if he leaves." 26 The Tribunal noted that the defendant attended the hearing but "because of his disabilities, the Tribunal found it difficult to communicate with him." 27 In September 2012 the defendant left his accommodation in Goulburn, travelled to Moree, and thereafter to Sydney. During this period he did not receive any practical supervision from CJP or the Public Guardian. Indeed, it appears that during most, if not all, of this period, these authorities were unaware of his whereabouts. 28 On 15 November 2012 the Guardianship Tribunal reviewed the previous guardianship order made on 14 November 2011 as varied on 1 August 2012 at a hearing in which the defendant, his mother (who purported to be his carer), a representative of the NSW Trustee and Guardian and Mr Hosking participated. 29 Mr Hosking gave evidence at the review that, despite "extensive case management and behavioural intervention planning", CJP staff could not manage the defendant, who spent substantial periods of time in Sydney engaging in drug and alcohol binges. Mr Hosking told the Guardianship Tribunal that his coercive accommodation function "was utilised once and had limited effect as a management tool". Mr Hosking also reported that the defendant had not been receiving any medications for at least the last month while in Sydney and that he was not subject to a Community Treatment Order (CTO). The CJP told the Guardianship Tribunal that only placement in a secure facility would address the difficulties in managing the defendant but that no such placement was available. Mr Hosking told the Guardianship Tribunal that: his capacity to make effective decisions for the defendant, given his lifestyle and non-compliance with medication, was "extremely limited"; and the guardianship order ought be permitted to lapse. He submitted that the defendant would best be managed by a CTO. 30 At the conclusion of the hearing the Guardianship Tribunal accepted the Public Guardian's submission that the guardianship order should lapse. The index offence 31 On 13 December 2012, six months after the defendant was released from gaol, and four weeks after the guardianship order lapsed, he committed the offence of reckless wounding (the index offence). The circumstances of the index offence were as follows. 32 The defendant followed the victim into an apartment building in Redfern at 5am and travelled with him in the lift up to the floor of the victim's apartment. The victim was unlocking the front door when the defendant pushed him to the ground. The defendant stabbed the victim several times with a knife and followed him into the apartment. There was a struggle, in the course of which the defendant stabbed the victim several more times. The victim called Triple-0. The defendant left the building. His departure was recorded on CCTV. 33 On 14 December 2012 the defendant was taken into custody and housed at the Metropolitan Remand and Reception Centre (MRRC). In May 2013 the defendant was placed in the Additional Support Unit (ASU) of the Metropolitan Special Programs Centre (MSPC) at Long Bay. Shortly after his arrival he started behaving in a sexually inappropriate way to female custodial staff. After several further incidents he was moved to Intensive Support Unit (ISU) where he remained until his transfer back to MRRC on 25 July 2013. 34 On 29 July 2013 Solomon DCJ found the defendant unfit to be tried and referred him to the Tribunal. Reviews undertaken by the Tribunal 35 The Tribunal is obliged, by s 46 of the Act, to review the case of a forensic patient every six months but may review the case of any forensic patient at any time. The Tribunal reviewed the defendant on a total of ten occasions, most recently on 7 January 2016. 36 At its first review, on 13 September 2013, the Tribunal found the defendant unfit to be tried and ordered his transfer from MRRC to the forensic hospital adjoining Long Bay Gaol (the Forensic Hospital) so that Clozapine medication could be administered (which could not be done while he was in gaol) in order to control his psychosis. The Tribunal said, in its reasons: "Mr Doolan requires admission to Hospital for intensive care and treatment, including potentially, the prescription of other medications in an attempt to control his symptoms, which unfortunately, place him and others at risk of serious danger." 37 The Tribunal's reasons also record: "The necessity for careful discharge planning cannot be overstated in Mr Doolan's case, given the system failures that occurred when he was last released." 38 On 20 March 2014, at its second review, the Tribunal was told that the defendant's treating team wanted him to be transferred back to the ASU "as the treatment which was commenced, Clozapine, could not continue due to other medical conditions." It was noted that his transfer to ASU was objected to by the staff there because of his history of conduct towards female staff. For this reason the defendant remained at the Forensic Hospital. The special hearing and the indication of a limiting term 39 As the defendant was found unfit to be tried, the matter proceeded as a special hearing before Tupman DCJ pursuant to s 19 of the Act. Her Honour held that, on the limited evidence available, the defendant had committed the alternative offence of reckless wounding. Her Honour acquitted him of the more serious charge of assault with intent to rob armed with offensive weapon and wounding. 40 On 20 June 2014, Tupman DCJ indicated, pursuant to s 23 (1)(a) of the Act, that, had the special hearing proceeded as a normal trial and had the defendant been found guilty, she would have imposed a term of imprisonment of three years. Accordingly, her Honour indicated a limiting term of three years to expire on 12 December 2015. Her Honour referred the defendant to the Tribunal pursuant to s 24(1)(a) and ordered, pursuant to s 24(1)(b), that he be detained in such place as the Tribunal directed. Accordingly, he became a forensic patient by reason of the operation of s 42. 41 Judge Tupman considered that the defendant posed a risk of violence in the community due to his inability to control his behaviour and make appropriate judgments as a consequence of his mental illness and intellectual disability. Her Honour considered the defendant's prospects of rehabilitation to be "almost nil because of his chronic mental illness". Her Honour noted that the defendant had an acquired head injury as a result of being hit with an iron bar when he was about 18, which rendered him comatose for a period of six months. Her Honour also recorded that the defendant had an extensive history of substance abuse which included smoking cannabis from the age of seven; using amphetamines and methamphetamines between the ages of 16 and 27; and using heroin. 42 Judge Tupman said, in her Honour's reasons for imposing the limiting term: "It is to be hoped and I plead with the authorities, to ensure that this offender is properly monitored and considered for the balance of the limiting term and then, when that expires in December 2015, in relation to any decision to release him from custody into any other form of living. It would appear to be without doubt that his release on the last occasion before he committed this offence was done without proper regard for his chronic condition, without monitoring, without consideration of appropriate placement and without the imposition of a community treatment order. It is hardly surprising therefore that he committed this serious offence and it is to be hoped that the authorities do not let such a situation occur in the future." Subsequent reviews by the Tribunal 43 At its third review, on 26 June 2014, the Tribunal ordered the transfer of the defendant (subject to the availability of a bed) from the Forensic Hospital to MRRC. His transfer was effected on 30 June 2014. 44 On 25 September 2014 the Justice Health Mental Health Network conducted a mental state examination of the defendant. In its report of 26 September 2014, it said: "This has been an issue with fellow patients and nursing and custodial staff in Correctional Centres and staff in his community placements. It seems reasonable to assume a sexual motive for his offences in 2010 even though he was not convicted of the more serious charges. The likelihood of him committing a serious sexual offence in the future needs to be considered. I would not be confident that management of his psychosis would be sufficient to manage his risk in this area. He has a history of failing under supervision. He has previously served time in prison for breaching of parole conditions and does not seem to have any record of successfully completing parole. On his last release from gaol he was under Guardianship and a PEO [Protected Estate Order] and was housed in 24 hours a day supported accommodation but was still unable to be managed for more than a few weeks. He was lost to follow up and became non-compliant, used alcohol and other drugs and committed a serious offence a few months later. Mr Doolan has a documented history of carrying knives on several different occasions. His current index offence involved stabbing a stranger in his own home in the course of what sounded like an attempted robbery. The offence for which he was previously a Forensic Patient allegedly involved him entering a woman's house with a knife and telling her that he wanted her to have his babies. There were reports of him carrying a machete during his time out of custody in mid-2012. This raises obvious concerns about his ongoing risk to others." 45 At its fourth review, on 2 October 2014, the Tribunal ordered that the defendant be transferred to the Junee Correctional Centre on the advice of Dr White, who considered that there would be more for the defendant to do there by way of therapeutic and practical work. The Tribunal noted in its reasons: "Discharge Planning This is Mr Doolan's second Limiting Term. He quickly reoffended after his first Limiting Term expired. The Tribunal and the others involved in this hearing are concerned to ensure that appropriate graduated discharge planning is undertaken in anticipation of the end of Mr Doolan's Limiting Term on 12 December 2015." 46 At its fifth review, conducted on 15 January 2015, the Tribunal heard that the defendant continued to have grandiose delusions (that he had hundreds of children; that he was God, Jesus and Satan). It was agreed that the defendant would benefit from a trial of community living while still a forensic patient "so that his safe transition could be effectively monitored and assessed". 47 At its seventh review, conducted on 19 February 2015, the Tribunal considered an application for escorted day leave or supervised day leave (as part of his transition to the community). It refused the application on the basis that it was not satisfied (as required under s 49 of the Act) that the defendant's safety or that of any member of the public would not be seriously endangered if the application were granted. Guardianship order 48 A guardianship order was made in respect of the defendant on 13 April 2015 by the NSW Civil and Administrative Tribunal. The Public Guardian was appointed with the following functions: to decide where the defendant may reside; to advocate generally for him; to make substitute decisions regarding medical and dental treatment for the defendant; to make decisions about the defendant's freedom of movement when he is discharged from Long Bay Hospital; and to make decisions about services to be provided to him. Mr Hosking, who was the Public Guardian for the defendant when he was last at liberty, was appointed to the role again on 13 April 2015. 49 On 5 May 2015 the defendant returned to the Junee Correctional Centre. He presented as delusional, stating that he had ten triplets and could make the writer of the report (to the Tribunal) pregnant. 50 In a report to the Tribunal dated 13 May 2015, two psychologists from Statewide Disability Services reported on what had occurred since the previous review in the following terms: "Mr Doolan is currently classified as a C1 security rating. His classification was reviewed on the 4 May 2015, however his C1 rating remained unchanged and the recommended placement at Junee CC has remained the same. This review has not yet been ratified. Mr Doolan has not been able to have his security rating reduced, due to his continued poor behaviour. He has had 5 internal punishments over the past 12 months, the most recent breach of Centre discipline was on 8 April 2015, related to sexualised behaviour directed towards a female staff member at Long Bay Hospital. Whilst Mr Doolan is classified to Junee CC, he has spent the last 3 months at Long Bay Hospital for medical and Guardianship Tribunal matters. Since Mr Doolan was housed at LBH, he has been charged with 2 counts of indecency on 2 April 2015 and 8 April 2015. The charges were both dealt with on 7 and 10 April respectively, receiving punishments of 28 days off buy-ups and 3 days cells. On 8 April 2015, OIMS case notes indicate that Mr Doolan self-harmed by slashing his wrists and was placed on a RIT. He remained on RIT until 13 April 2015 and was cleared on that date. He was subsequently placed one out due to his disinhibited sexual behaviour. Furthermore he was placed on SMAP. Given Mr Doolan's poor behaviour, he is not eligible to progress to a classification level that would enable him to participate in any external leave programs. Should Mr Doolan progress to C3 classification, it would be recommended that any day-leave into the community would initially be under the supervision of a male Correctional Officer." 51 Dr Jones, a psychiatrist at Junee Correctional Centre, reported to the Tribunal on 13 May 2015 that the defendant continued to exhibit active psychotic symptoms. In a report dated 15 May 2015 to the Tribunal from CJP, the defendant was reported as continuing to suffer from auditory and visual hallucinations. 52 At its sixth review (the hearing of which took place on 14 May 2015), the Tribunal's reasons dated 11 June 2015 recorded its assessment: "Mr Doolan is not suitable for day release because of his behaviour and risk and the team is concerned about his mental illness, with the interlocking of it and a personality disorder causing difficulty of management." 53 On 19 June 2015 the delegate of the Ministry of Health ordered pursuant to s 55(1) of the Act that the defendant be transferred from MRRC to a mental health facility. In accordance with this order the defendant was admitted to Long Bay Hospital on 23 June 2015 because of the lack of improvement in his mental state and his continuing psychotic delusions. 54 In a report dated 24 July 2015 prepared for the Tribunal's eighth review on 30 July 2015 the Justice Health Mental Health Network reported that he was admitted to Long Bay Hospital on 23 June 2015. Dr Lee, the Psychiatric Registrar noted that "there has been poor compliance with medications in the custodial setting". 55 In its review of 30 July 2015 the Tribunal stated: (1) the defendant currently presents a significant risk of further offending if he is discharged into the community without suitable accommodation and an appropriate treatment plan; (2) the defendant does not believe he has a mental illness or needs medication; (3) the defendant suffers from delusions (including that he is God and that he has fathered hundreds of children); (4) he has indecently exposed himself persistently while in custody; (5) the treating team requested that the defendant be transferred to the Long Bay Forensic Hospital so that therapeutic programs could be investigated; and (6) CJP have accommodation available for the defendant at Blacktown although he could not be managed in his present condition at that accommodation. 56 The issue of use of Clozapine to control the defendant's psychosis was addressed in the Tribunal's reasons following this review as follows: "Dr Darren Lee said that Clozapine had been ceased because of medical complications. The cessation of Clozapine is likely to have prompted this relapse. However, Dr Lee also reports poor compliance with medications in a custodial setting. Mr Doolan has been commenced on a depot medication, as well as oral medications. It may take some months for this to reach full therapeutic effect. Mr Doolan is not keen to revisit the question of Clozapine at this time. However, it [sic] a re-trial of Clozapine may need to be considered in the future. It is clear from the treating team's reports, and the other evidence available to the Tribunal that Mr Doolan would present a significant risk if he were to be discharged to the community with these current symptoms at present. The treating team has asked that Mr Doolan be transferred to the Forensic Hospital to more fully evaluate the appropriate options for Mr Doolan. Dr Lee explained that the Forensic Hospital would provide a broader range of therapeutic programs which would benefit Mr Doolan. The Tribunal accepted that this was the case, but notes that many of those programs required a considerable degree of time to complete. It is not clear to what extent to [sic] those programs might be of benefit to Mr Doolan in the five months which remain on his limiting term, especially given his limited intellectual capacity. Although the Tribunal had previously considered whether [the defendant] should be considered for leave, in order to assist his return to the community, Dr Lee said that leave was not appropriate given Mr Doolan's current mental state." 57 Dr Kerri Eagle, the defendant's treating forensic psychiatrist at the Bronte Unit of the Forensic Hospital, prepared a report for the Tribunal's review ninth review on 29 October 2015. She said of the defendant: "His illness has been treatment resistant. He has been non-compliant with pharmacological treatments and clinical reviews. He has breached parole and bail conditions. He has been unable to comply with management plans in custody or detention. ... He does not accept that he has a mental illness or that he requires any mental health treatment. ... Mr Doolan has a high loading of historical risk factors for violence and a high loading clinical risk factors including poor insight, violent ideation, instability, active symptoms of psychosis and problems with treatment and supervision response. On the basis of this, he is at high risk of violent reoffending in the short and longer term. ... Given Mr Doolan's ongoing psychosis, intellectual impairment and ongoing problematic behaviours (such as aggressive sexual behaviours); and his other clinical risk factors (such as instability, poor insight and poor treatment response), he remains a risk of danger in a less restrictive setting. In my opinion, Mr Doolan requires ongoing treatment and management in a high secure forensic setting such as the Forensic Hospital and the Forensic Hospital is the least restrictive reasonably available form of care in the circumstances." 58 Dr Eagle recommended the following restrictions be placed on the defendant: "Remain detained in the Forensic Hospital under the provisions of the NSW Mental Health (Forensic Provisions) Act 1990" 59 Following that review the Tribunal expressed its conclusion that Mr Doolan presented "a high risk of violent reoffending in the short and longer term" and noted that he had been transferred to the Forensic Hospital on 21 September 2015. 60 Dr Eagle prepared a report dated 21 December 2015 (for the Tribunal's tenth review on 7 January 2016). She summarised her opinion in the following terms: "Mr Doolan has a severe mental illness, Schizophrenia, that is characterised by delusions, thought disorder and hallucinations. As a result of this illness and his intellectual disability Mr Doolan has engaged in challenging behaviours such as sexually inappropriate aggressive acts and violent threats. I am of the opinion that he is a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) in that he remains a serious risk of harm to others warranting ongoing detention in an acute psychiatric facility such as the Forensic Hospital and that there is no less restrictive option for his management in the circumstances." 61 On 7 January 2016 the Tribunal accepted Dr Eagle's opinion which is reflected in the following extract from its reasons for determination: "Mr Doolan remains very unwell with behavioural problems and psychosis. He suffers delusions, thought disorder and hallucinations. He is a mentally ill person within the meaning of the Mental Health Act, and a serious risk of harm to others."
7. The defendant has recently been made the subject of a Conditional Release Order by the Tribunal (dated 12 November 2020). The conditions of release require that he reside in 24/7 secure accommodation which will be staffed at all times. The defendant was made the subject of a guardianship order on 8 September 2020.
8. In its most recent review, the Tribunal conditionally released the defendant pursuant to ss 43, 46, 47 and 75 of the Act. The order of the Tribunal requires the defendant's discharge within three months (otherwise a further review will be held in relation to the reasons for the delay). The conditions imposed by the Tribunal are extensive and include a requirement that the defendant live at a specified address. The reasons of the Tribunal record that this was the 19th Tribunal review of the defendant.
9. The Tribunal noted the expert reports and their opinions, recognised that the defendant presented a risk of harm to himself, and others, and that there was also a significant risk of absconding. However, the Tribunal accepted the evidence as to the rigorous monitoring and supervision to be provided at the proposed accommodation. The Tribunal stated that the defendant "undoubtedly presents risks if not properly monitored", but was satisfied that the risk to his safety or that of other members of the community, would not be unacceptable if the proposed level of monitoring and supervision took place.
10. Adamson J conducted a comprehensive review of the cl 7(2) matters as follows (Doolan (No 2) at [62]): "The matters listed in cl 7(2) ... Reports received from persons appointed under cl 6(5) to conduct examinations (cl 7(2)(b)) Dr Kasinathan 64 Dr Kasinathan, a psychiatrist, examined the defendant on 11 January 2016 at the Forensic Hospital. He opined that the defendant belongs to a "high risk category of people with elevated future risk of physical and sexual violence". According to Dr Kasinathan: "There is compelling clinical justification to continue his inpatient psychiatric treatment in a secure hospital to appropriately manage his risks." 65 He considered the defendant to have significantly limited insight, active symptoms of schizophrenia, affective and behavioural instability and a poor treatment response (notwithstanding that he had been in the Forensic Hospital for almost four months by the time he was assessed). At the time of the assessment, he was subject to florid psychotic symptoms, including thought disorder and delusions. His cognitive ability was assessed as being in the moderate intellectual disability range. Dr Kasinathan said in oral evidence that the defendant does not have the cognitive ability to engage in rehabilitation programs. 66 Dr Kasinathan considered there to be a "very high likelihood of major deterioration in his mental illness, with ensuing increased risk of harm to others, if he were not detained in a psychiatric hospital". He diagnosed the defendant as suffering from the following: schizophrenia (treatment resistant); moderate intellectual disability (lifelong and intractable); major neurocognitive disorder due to traumatic brain injury; substance abuse (alcohol, cannabis, amphetamine and opioid) disorders; and anti-social personality disorder. His anti-social disorder manifested itself in impulsivity, aggression, irresponsibility and lack of concern for others. Dr Kasinathan also considered it to be possible that the defendant suffered from paraphilic disorder, although he opined that it was also possible that his sexual disinhibition was due to the combined effect of psychosis, intellectual disability, neurocognitive disorder and antisocial personality. 67 Dr Kasinathan considered the defendant requires inpatient hospital care, preferably in a dedicated forensic hospital for ongoing treatment for at least two to three years before transition to suitable supported secure accommodation. He considered that appropriate psychiatric care could be provided whether the defendant was a forensic patient or a civil involuntary patient under the Mental Health Act 2007 (NSW) and that, accordingly, he did not need to continue to be a forensic patient. He regarded the care provided within the Forensic Hospital to both categories of patient as equivalent. He opined that, after a period of two to three years, if the defendant's clinical response was appropriate, he could be transferred to CJP as long as a Community Treatment Order (CTO) was made in respect of him. 68 Dr Kasinathan's view that civil patient status was sufficient to manage the risk posed by the defendant appears also to be based on his concern that the recall power, if used by the Tribunal pursuant to s 68 of the Act, could result in the defendant's return to gaol, which he regarded as deleterious to the defendant's interests. He explained that a return to gaol advanced neither the protection of the community nor the interests of the defendant since it delayed the treatment required to reduce the risk. He said: "I think optimal treatment of this person's mental illness and treatment needs is ultimately ‑ benefits the community because it reduces his risk of offending in future and it reduces his risk of unpredictably being aggressive." 69 Dr Kasinathan expressed his conclusion on the question whether the defendant required on-going management as a forensic patient in the following terms: "Mr Doolan does not require ongoing management specifically as a forensic patient for his risks to be adequately managed, as his risks could be adequately managed as a civil involuntary patient. As Dr Ellis pointed out, there is no substantial difference to the psychiatric care and risk management provided to an inpatient in the Forensic hospital, as a forensic patient order or as a civil involuntary patient. I agree that Mr Doolan could be safely and effectively managed under a civil involuntary patient order, enabling assertive administering of psychiatric medication and longer term following clinical improvement, community transition to a secure CJP placement under a Community Treatment Order. Were Mr Doolan to continue under a forensic patient status, the forensic section of the Mental Health Review Tribunal would continue oversight. However as an involuntary patient, there would be a similar level of scrutiny from the Tribunal. As a forensic patient in the community, I agree that recall to prison is not helpful in terms of Mr Doolan's risk management, as there are insufficient psychiatric services in prison for his specific treatment needs. Ultimately, specialist inpatient forensic psychiatric care is required for Mr Doolan, for at least the next two years. This can be adequately provided for Mr Doolan either as a civil involuntary patient or as a forensic patient." Dr Banks 70 Dr Banks, registered psychologist, assessed the defendant at the Forensic Hospital on 16 December 2015. He noted that the defendant appeared to be experiencing thought disorders and delusions associated with psychosis. After analysing the relevant literature, Dr Banks opined: "A series of actuarial and structured decision-making protocols were utilised in the process of deriving the offender's risk and likelihood for recidivism. By way of summary Mr Doolan's scores across multiple different inventories reflects a high to very high risk for recidivism and in the absence of effective treatment and continuation of his psychotic symptoms it indicates a high likelihood of return to reoffending. In addition, there are several risk factors regarding Mr Doolan's temperament, nature of psychotic symptoms, degree of cognitive impairment, declared motivation for ongoing substance use as soon as possible, impaired insight and judgement into his own mental health, and level of impulsivity that are highly associated with re-offending (as outlined in the body of the report)." 71 Dr Banks reviewed the defendant by reference to Static-99, an instrument designed to help predict sexual and violent recidivism in sexual offenders. The defendant received a score of 6 which placed him in the high risk category relative to other male sex offenders. Such individuals are, on average, more than 3.8 times more likely to re-offend. On each of the tests administered by Dr Banks, the defendant scored in the high risk category. 72 Dr Banks expressed his conclusions in the following passage: "Currently, the risk Mr Doolan poses is not likely to be adequately managed by detention as a civil involuntary patient under the Mental Health Act 2007, nor under guardianship orders with him being accommodated in secure and supported accommodation, such as the Community Justice Program (CJP) placement at Lander Avenue Blacktown. It is recommended that Mr Doolan continue to be managed at Long Bay Forensic Hospital, whereby he may be transferred to a less restrictive ward, such as the 10-bed or 17-bed unit dependent on behavioural and treatment gains. Given the nature of risk factors and personality traits Mr Doolan presents with, he would require extensive and specialist support from a forensic psychiatric unit on a forensic order which in all probability will not be available at the level of speciality nor intensity in a CJP placement. Given the improvements in his behaviour with staff following reinforcement strategies, ongoing implementation of behavioural strategies is recommended to minimise and manage his sexual disinhibition and inappropriate sexual behaviours. Should Mr Doolan remain at Long Bay Forensic Hospital, staff would also be able to monitor the severity of psychosis and possible improvement with ongoing medical compliance. Behavioural programs can then be modified to target higher-order behaviours including communication and engagement in structural learning programs, inclusive of literacy/numeracy. Any progress Mr Doolan evidences in these programs can then be used to guide future decision-making about possible reductions in supervisory intensity." Reports provided by experts pursuant to cl 5(b), Sch 1 (cl 7(c), Sch 1) Dr Ellis 73 Dr Ellis, qualified psychiatrist, prepared a report dated 30 September 2015 for the purposes of the preliminary hearing based on a clinical interview conducted on 21 September 2015 at the Forensic Hospital, and a supplementary report dated 4 February 2016 for the purposes of the final hearing. Dr Ellis opined that the defendant's risk of re-offending was high. He noted in his first report that the defendant admitted to him that he intended to kill the victim of the index offence. Dr Ellis considered that the defendant would be unable to abstain from the use of prohibited substances outside a supervised environment and noted the contribution made to the defendant's offending conduct by such substances. He also noted that sexual disinhibition was a feature of the defendant's offending conduct. In his oral evidence Dr Ellis referred to the seriousness of his schizophrenia; the difficulties of controlling it; and the circumstance that unless it were controlled other interventions would be likely to be futile. 74 Dr Ellis considered that there was no substantial difference between the care and risk management provided to a forensic patient in a forensic hospital or to an involuntary patient in the same facility. However, he considered there to be a significant difference between the conditional release of a forensic patient and the conditional release of an involuntary patient. In the former case, the patient could be recalled to hospital or prison more rapidly than in the latter case where recall would require that the patient deteriorate to the point where he became a "mentally ill person". He said: "Ultimately, the clinical care provided to him will manage the risk associated with his conditions, rather than the specific type of legal order. If conducted in an evidence-based fashion in the manner suggested above the use of the civil mental health legislation could be as safe and effective as an order for conditional release, and less restrictive. It would also remove the possibility of restrictive and ineffective recall to prison in the event of a non-criminal breach of conditions of release. Remaining on a forensic order moves the oversight from individual clinicians in health services to the automatic oversight of the forensic arm of the Mental Health Review Tribunal. This does guarantee the interest of the Forensic Mental Health Network and its specialist clinicians in the case. There is evidence that specialist forensic mental health care improves offending outcomes." Mr Parker 75 Mr Parker, registered psychologist, assessed the defendant as being at high risk of further sexual offences and other types of offending, principally by reason of his impulsivity. He noted his sexually inappropriate conduct towards female staff while in custody, which could be a result of intellectual impairment. He considered the defendant would be likely to break rules and laws at the earliest possible opportunity. Any other medical reports (cl 7(2)(d)) Dr Eagle 76 Dr Eagle, the defendant's treating psychiatrist, has reported to the Tribunal that the defendant is at high risk of sexual and violent re-offending in the short and longer term; that he is aggressive, impulsive and disinhibited. Some of her reports have already been referred to in the narrative of facts set out above. Reports of other clinicians 77 By reason of the regular reviews by the Tribunal there are several reports of psychiatrists, including Drs Lee, Jones and White, which are referred to above in the narrative. Their consistent opinion is that the defendant poses a high and chronic risk of serious harm to others. Any order or decision made by the Tribunal that is relevant to the application (cl 7(2)(e)) 78 At its review on 19 February 2015, the Tribunal declined to grant to the defendant escorted or supervised day leave from Junee Correctional Centre as it was not satisfied (as it was required to be under s 49 of the Act) that neither the defendant's safety nor that of any member of the public would be seriously endangered if the application were granted. 79 At the most recent review on 7 January 2016 the Tribunal determined that there was no less restrictive option for the defendant's management and security than for him to remain at the Forensic Hospital and that there should be no variation to the order detaining him there. The Tribunal recorded in its reasons that the defendant "is a serious risk of harm to others". The defendant's level of compliance with any obligations while a forensic patient (cl 7(2)(g)) 80 The defendant has ten custodial charges for indecency, involving sexually inappropriate behaviour (including masturbation) in front of or towards female officers. Views of the Court that imposed the limiting term (cl 7(2)(h)) 81 The views of Tupman DCJ appear from her Honour's reasons for imposing the limiting term following the special hearing of the defendant in respect of the index offence. I read her Honour's remarks as registering her impression that the system had failed both the defendant and the community when he was at large following the expiry of the earlier limiting term. Although her Honour's criticisms included that the defendant was not the subject of a CTO when he was released, I do not consider a fair reading of this passage to warrant the conclusion that her Honour was expressing the view that a CTO of itself would have either prevented the commission of the index offence or materially lowered the risk of its occurring. Rather, Tupman DCJ was of the view (as proved to be the case) that the combined resources of CJP, the Goulburn CMHT and the Public Guardian (until the order lapsed) were insufficient to control the defendant or ameliorate the risk of harm. Her Honour considered that, in such circumstances, it was "hardly surprising therefore that he committed this serious offence". Other relevant evidence Dr Keller 82 Dr Adrian Keller, who has been the Clinical Director of the Forensic Hospital since 2009, gave evidence on behalf of the plaintiff and was cross-examined. He deposed that the Forensic Hospital provides the highest level of security that can be afforded by a mental health facility in New South Wales. There are also medium-secure units. In the Forensic Hospital there are four units for adult males, including the Bronte Unit, for assessment and acute care. According to Dr Keller, in most cases a high-risk civil (non-forensic) patient would be unlikely to be transferred directly from the Forensic Hospital to the community on a CTO. Most such patients are transferred to a mental health facility, as an involuntary patient."

Reports provided by experts pursuant to cl 5(b) and cl 7(2)(c)

1. Dr Yolisha Singh provided a Risk Assessment Report (RAR), dated 2 November 2020, for the purposes of cl 5(b). Dr Singh assessed the defendant on 23 November 2020 for approximately 90 minutes. His thought form was disordered and his thought content on that day included grandiose and religious delusions. He also described auditory hallucinations. She described his insight into his mental illness as "extremely limited" and suggested that he did not believe he needed antipsychotic medication to treat his symptoms.
2. Dr Singh noted that he was unable to provide a clear and coherent psychiatric history but she was able to glean such a history from documents provided to her. The defendant did not provide an accurate account of his substance use history, but stated that he began drinking alcohol at age seven and increased his use over time to drinking daily. He reported first smoking cannabis at the age of seven and increasing his use to approximately ¼ of an ounce daily.
3. Dr Singh diagnosed the defendant with schizophrenia (of a treatment-resistant kind, meaning that symptoms were likely to remain throughout his life), moderate intellectual disability, major neurocognitive disorder due to traumatic brain injury, multiple substance use disorders and traits of anti-social personality disorder. Dr Singh was of the opinion that the defendant posed a risk of causing serious harm to others due to the detrimental impact of his mental illness on his mental state and attendant aggressive behaviours. This was a risk which remained whether he was a forensic patient or not. He falls into the high risk category of people with an elevated future risk of violence and had a moderate loading of risk factors for sexual violence. Treatment approaches were limited by Clozapine induced myocarditis and while his aggressive behaviours, violence and sexual inhibition appeared to have attenuated in frequency and intensity, Dr Singh opined that his risk of violence was likely to remain high in the short to medium term.
4. Dr Singh summarised the defendant's recent progress in hospital. She noted that in January 2019, he presented with an increase in sexually inappropriate behaviours, including masturbating in the presence of staff. This relapse occurred in the context of suspected non-compliance and diversion of his medication after which he was transferred from the Dee Why Ward to the Bronte Ward on 1 February 2019. He continued to invite female staff into his room and to linger around the nursing station looking at female staff. The frequency of these behaviours decreased and he was transferred back to the Clovelly Ward in August/September 2019. There was an overall reduction in his sexually inappropriate behaviours. He was involved in two separate instances of aggression in August and September 2020,. In one of those he was the victim. Dr Singh noted the treating team's opinion that he had reached his rehabilitation potential, as well as the proposal for his conditional release (Dr Singh's report predated the Tribunal's latest orders).
5. Dr Singh appraised the defendant's violence risk using the HCR-20 v 3 structured professional judgment tool. She assessed the defendant as having a high loading of historical risk factors associated with violence in the longer term, noting amongst other things, that he suffered from a severe and enduring mental illness. He also had an adolescent conduct disorder which was an antecedent for an anti-social personality disorder. Although this diagnosis could not be established due to his protracted and acute psychotic symptoms. While he no longer wished to engage in anti-social behaviours, his history suggested he was likely to hold violent attitudes and to struggle to generate pro-social responses in stressful situations, as evidenced by his response to aggression from a fellow patient. Dr Singh also identified a failure to respond satisfactorily to, or engage with, supervision, as documented in his institutional record and Tribunal reports.
6. Dr Singh identified a high loading of modifiable clinical risk factors for violence in the short to medium term, including severe instability of mental state with positive symptoms of chronic psychosis, as well as a problematic level of irritability and impulsivity, despite assertive management in a highly regulated environment. A future risk management factor includes, in Dr Singh's view, the provision of professional service input intensity commensurate with the defendant's current level of risk. She concurred with the opinion that the defendant could be transferred to a community placement "with stringent supervision".
7. Dr Singh assessed the defendant's risk of committing further sexual offences using the Risk for Sexual Violence Protocol (RSVP). She concluded that he presented with a moderate loading of risk factors for sexual violence but she found no evidence of deviant sexual arousal. She opined that his sexual offending risk was likely to be mitigated by assertive treatment of his psychosis, behavioural management of his impulsivity and environmental restrictions. She added that his symptoms mean that he presented as unpredictable. Given his cognitive deficits, his risk of sexual violence could increase if he was afforded a window of opportunity to abstain from treatment and/or relapse into substance use.
8. Dr Singh used the Structured Assessment of Protective Factors for Violence Risk, which involved a set of 17 factors. Of those, Dr Singh identified only three (all in the domain of external items), as relevant to the defendant, namely professional care, supervision of living circumstances (as a forensic patient in a highly secure facility) and external control (in the form of an order under the Act). Protective factors lacking in the domain of motivational items, included a lack of motivation for the effective use of medication, which was identified as a critical item. As to external protective items, supervised living circumstances were identified as a critical item, with Dr Singh stating that should the defendant cease to be nursed in the Forensic Hospital as an involuntary patient and be transferred to the community on a Community Treatment Order (CTO), these external protective factors would be only partially present.
9. Dr Singh regarded the symptoms of each of the defendant's numerous current psychiatric conditions as contributing to his overall risk formulation. She opined that he presented a "complex clinical picture", with his risk of re-offending primarily due to the severity of his psychiatric symptoms. She added that his limited insight, which might lead to noncompliance with treatment, his level of disorganisation and impaired psycho-social functioning, also increased his risk of reoffending. The latter impairment combined with his learned behaviours through exposure to violence in childhood and repeated periods of incarceration, coupled with cognitive rigidity, likely impaired his ability to generate alternative responses in situations which he assessed as hostile or stressful.
10. In providing her opinion on the need for ongoing management of the defendant as a forensic patient, Dr Singh stated that continuation of his status as a forensic patient could help contain his risks (and would remove oversight from individual clinicians to the forensic arm of the Tribunal), particularly if he was transferred to the community with lower levels of security in comparison to the Forensic Hospital. She suggested that more stringent oversight and intensive support might be required during the initial phases of his transition to community-based care.
11. Dr Singh noted that based on the course of his history and symptoms, the defendant was assessed as a mentally ill person as defined under the Mental Health Act 2007 (NSW) (MH Act) and that he could be classified as an involuntary patient under that Act by the Tribunal. However, if he was transferred to the community, he would cease to be an involuntary patient and an application for a CTO would likely be made. It was Dr Singh's opinion that a CTO would not adequately manage the defendant's current risks. She stated that assertive psychiatric treatment alone was unlikely to contain his violence risks, and that he was unlikely to adhere to a proposed treatment plan, especially if such an order cannot mandate him remaining in secure, supported accommodation. She suggested that in the absence of an extension of the current forensic order, should the defendant's mental health deteriorate in the community and his risks escalate, transfer back to the highly secure Forensic Hospital is likely to be more difficult to achieve.
12. Dr Singh was of the view that a guardianship order was not sufficient to contain the defendant's current risks, because despite the potential to include coercive powers in a guardianship order, there were limits to the way such powers can be enforced (as evident from the course of events when the defendant was under a guardianship order in 2012).
13. On the assumption that the restrictive practices and supports detailed in Dr MacDonald's 28 September 2020 report were provided, Dr Singh agreed with the treating team that the defendant's risks and needs could be managed in supported accommodation. She was not aware of any other less restrictive means of managing the defendant's current risks.
14. Dr Singh suggested that an extension of two to three years to the defendant's forensic status would be reasonable, based on his current symptoms, response to treatment and the proposed plan that he be discharged into the community.

Any other expert reports: cl 7(2)(d)

1. Dr Kirsty MacDonald is the defendant's treating psychiatrist who has been treating him since June 2020. She prepared a report for the Tribunal dated 28 September 2020. She stated that the defendant had a diagnosis of treatment-resistant schizophrenia, an intellectual disability and a major neurocognitive disorder due to traumatic brain injury as well as poly-substance use disorder (currently in remission in a controlled environment). He also had a significant history of deliberate self-harm behaviour and suicide attempts. His schizophrenia was characterised by grandiose and religious delusions, thought disorder and at times, bizarre behaviour. The most longstanding and persistent symptom appears to be his delusion that he has fathered hundreds of children and is able to impregnate women in multiple ways. His preoccupation with women has been longstanding and is a key feature of his illness.
2. Dr MacDonald noted the defendant's history of violence in custody, in particular threatening to take educational staff hostage in 2008, allegedly punching a fellow inmate on 23 April 2014, making threats of violence to staff on 8 June 2014, fighting with a fellow inmate on 13 June 2014 and throwing coffee on staff in July 2015. The defendant was also documented as engaging in a number of inappropriate sexual behaviours in custody as well as other institutional breaches.
3. Dr MacDonald summarised his progress in the Forensic hospital, noting that he had continued to display some sexually disinhibited behaviour following his re-admission to the Clovelly Ward in September 2019, but that this was significantly reduced compared to previously, and his last inappropriate behaviour was in late 2019 when he touched a nursing student's leg. She noted that since the last Tribunal hearing, his sertraline dose had been increased and there had not been any suspicion or concern that he had been diverting medication. Dr MacDonald explained that the defendant had not completed any "psychoeducation about his illness, index offence or psychosexual counselling", due to his cognitive impairment and limited attention span.
4. Dr MacDonald stated that the defendant's substance use had been closely linked with his decline in mental state historically and exacerbations of psychosis. He had ongoing grandiose and bizarre delusions, very poor insight into his mental illness and need for treatment and the effect that his illness has on his behaviour. She added that he has suffered from serious cardiac side effects to clozapine and subsequent medication regimes have been "limited in effectiveness for the remission of psychotic symptoms and sexually disinhibited behaviour".
5. Using the HCR-20 tool, Dr MacDonald identified a high loading of historical risk factors for future violence and demonstrated instability potentially indicating a chaotic and unsupported milieu which might predispose to violence. She noted that he demonstrated some difficulty in adhering to supervision protocols, as well as cognitive and affective instability if his needs are not immediately met. The defendant's DUNDRUM quartet scores also indicated ongoing areas of clinical need and the appropriateness of transfer to a similarly secure environment. Dr MacDonald noted that the defendant would not be accepted into Medium Secure Units due to his sexual offending history and that further rehabilitation was not possible given his significant cognitive impairments.
6. Dr MacDonald was of the opinion that the defendant required a highly structured and supervised setting. His condition was unlikely to alter and was likely to deteriorate with the passage of time. He presented as a moderate to high absconding risk. He would require ongoing assertive management with antipsychotic medication. Dr MacDonald recommended that he be managed under a CTO should he cease to be a forensic patient, and that he should continue with supervised medications given his history of non-adherence. She believed that the proposed management plan for supported accommodation was the least restrictive option consistent with safe and effective care.
7. Dr Paul Read (consultant forensic psychiatrist) and Dr Macelo Rodriguez (psychologist) prepared an initial risk management report for the Tribunal dated 21 September 2020. Drs Read and Rodriguez referred to the same psychiatric diagnoses as Dr MacDonald, though they also noted that the defendant could meet DSM-5 criteria for Antisocial Personality Disorder. They identified a number of risk factors associated with reactive aggression and sexual violence, noting that he was predisposed to reactive aggression and his risk is increased by his proneness to use weapons (knives). They stated that the defendant presented with a low-moderate loading of risks for inappropriate sexual behaviour, he seemed to be largely unpredictable and his risk could increase if afforded a window of opportunity.
8. Drs Read and Rodriguez opined that care, treatment and control was necessary for the protection of the defendant and others from serious harm. For the purposes of s 43(a) of the Act, they stated that the safety of the defendant and members of the public was unlikely to be seriously endangered by his conditional release to a secure, supervised and highly structured setting such as was proposed, provided the defendant adhered to the risk management plan recommended. For the purposes of s 43(b), they stated that this was the least restrictive regime consistent with safe and effective care. They stated that less supervised/contained accommodation would not be viewed as appropriate in the future. They added that he should not be left unsupervised in the presence of female staff, other females or the wider community.
9. A number of earlier (but still relatively recent) reports to the Tribunal from the defendant's treating forensic psychiatrists expressed the view that for the purposes of s 43 of the Act that the safety of the public was likely to be seriously endangered by the defendant's release.

Compliance with obligations while a forensic patient: cl 7(2)(g)

1. As noted by Adamson J, the defendant has ten custodial charges for indecency, involving sexually inappropriate behaviour (including masturbation) in front of or towards female officers. He also had a history of violence in gaol, as noted in Dr MacDonald's report. Dr MacDonald's report indicated that the defendant demonstrates some difficulty in adhering to supervision protocols as well as cognitive and affective instability if his needs are not immediately met. His progress in the Forensic Hospital indicates periods of non-adherence to aspects of his care, resulting in his transfer from the Dee Why Ward to the Bronte Ward on 1 February 2019, after an increase in sexually inappropriate behaviours and concern from staff about medication diversion. He appeared to have been adherent toward rules in the Bronte Ward and subsequently the Clovelly Ward from September 2019, although he had continued to display some sexually disinhibited behaviour.
2. Adamson J in Doolan (No 2) set out in detail the differences between the legal regimes for forensic and civil patients as follows: "The threshold test in cl 2(1)(a): whether the defendant poses an unacceptable risk of causing serious harm to others 90 The first question is whether I am satisfied "to a high degree of probability" that the defendant poses an "unacceptable risk" of causing serious harm to others if he ceased to be a forensic patient. The matters listed in cl 7(2) are relevant to both limbs of cl 2(1). 91 The present case is, in my view, a strong one. The plaintiff's uncontrolled (and apparently treatment-resistant) schizophrenia is but one of the many conditions which create an unacceptable risk that he will cause serious harm to others if he ceases to be a forensic patient. Another is his anti-social personality disorder which, when coupled with cognitive impairment, renders him effectively incapable of controlling his strong sexual and violent impulses, which are frequently influenced by uncontrolled (and, to date, uncontrollable) psychoses. 92 As the High Court said, in a different context, in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574: "The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence." 93 The defendant continues to be prey to his delusions, which arise from psychosis produced by his schizophrenia. That he continues to suffer from similar delusions (that he is God; that he has countless children; and that he can - and is entitled to - make any woman pregnant irrespective of the lack of consent) as those that influenced his offending in 2010 (on two occasions) indicates a poor prognosis, as does the circumstance that he has been in custody since December 2012. 94 Since being in custody for the past three years he has spent considerable periods of time in the Forensic Hospital at which time anti-psychotic drugs have been trialled, including Clozapine. None of the drugs trialled has been effective to prevent his delusions, although some might have moderated their frequency and extent. The defendant has experienced considerable difficulties when taking Clozapine previously such that it was discontinued on at least one occasion. He has continued to display disinhibited conduct towards female staff in the highly regulated and controlled environment of prison and the Forensic Hospital. The suggestions that his behaviour would improve in a less restricted environment, or that Clozapine (his current anti-psychotic medication) will ultimately prove to be effective once sufficient time has passed, such that the unacceptable risk posed by the defendant will be materially ameliorated, appear to me to be no more than the triumph of hope over experience. 95 I consider that the plaintiff has established this first limb to the requisite standard. The test in cl 2(1)(b): whether the risk cannot be adequately managed by less restrictive means (including classification as an involuntary patient) 96 In my view, the principal issue in the proceedings is whether the defendant's risk cannot be managed by less restrictive means. Such "less restrictive means", as the clause provides, include classification as an involuntary patient. Although the plaintiff submitted that it was questionable whether classification as an involuntary patient could properly be regarded as "less restrictive means", I consider that I ought adopt the assumption implicit in the wording cl 2(1)(b): namely, that an extension of a person's status as a forensic patient is more restrictive than classification as an involuntary patient. I consider that the question whether "means" are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance. ... 100 There are several areas of difference between the legal regimes for forensic and civil patients. The relevant areas of difference are in respect of the following, each of which will be considered in turn: (1) The objects of the legislation; (2) The composition of the Tribunal; (3) Review by the Tribunal; (4) The basis for detention; (5) Release from detention; (6) Imposition of conditions while patient is living in the community; (7) Consequences of breach of conditions. The objects of the legislation The Act 101 The objects of Part 5 of the Act (which is entitled "Forensic Patients and Correctional Patients") include "to protect the safety of members of the public" (s 40(a)). Mental Health Act 102 The principles for care and treatment set out in Pt 1, Ch 4, s 68 of the Mental Health Act are, with one exception, exclusively concerned with the person with a mental illness or mental disorder. The single exception is that those caring for such people have a right to be informed and involved: s 68(j). The first principle, in s 68(a), is: "people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given" [Emphasis added.] Guardianship Act 1987 (NSW) 103 The general principles set out in s 4 of the Guardianship Act 1987 (NSW) (which it is the duty of those exercising powers and functions under the Guardianship Act to observe) relate exclusively to the interests (variously expressed) of the person with the relevant disabilities. As such, the Public Guardian is not permitted to consider the interests of the community, in so far as they compete, or do not correspond, with the interests of the disabled person. There is a strong bias in favour of the person's freedom of decision and action, as is reflected in s 4, which provides as follows: "4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles." Composition of the Tribunal Forensic Division 104 All reviews are conducted by a three-member panel: the President or Deputy President (who are lawyers and chair the meeting); a psychiatrist; and a third suitably qualified member (s 2 of the Tribunal's Forensic Guidelines). When release is being considered, at least one of the members must be the President, or a Deputy President, who is the holder or former holder of a judicial office: s 73(3) of the Act. Involuntary patients 105 A mental health inquiry may be conducted by one member (who is the President or a Deputy President or a member qualified to be appointed as a Deputy President): s 150(2A) and Sch 5, cl 1, Mental Health Act. A review must be conducted by three members: s 37 of the Mental Health Act; cl 19(1)(b), Mental Health Regulation 2013. Review by the Tribunal Forensic patients 106 Reviews must be conducted at least every six months and may be conducted at any time: s 46(1) of the Act. Involuntary patients 107 An "assessable person" must be brought before the Tribunal for mental health inquiry as soon as practicable after being assessed as mentally ill: s 27(d) of the Mental Health Act. A single member at the mental health inquiry can discharge the patient if the Tribunal is not satisfied on the balance of probabilities that the person is a mentally ill person: ss 35(3); 150(2A) of the Mental Health Act and Mental Health Regulation 2013, cl 19(4). The reviews take place every three months in the first 12 months and every 6 months thereafter: s 37 of the Mental Health Act. 108 The safety of members of the public is not identified as a relevant consideration under the Mental Health Act (although as referred to below it is incorporated into some of its provisions). Neither the Attorney-General, nor the Minister of Health is required to be consulted or heard. Indeed the focus of the Mental Health Act appears to be the person concerned. For example, s 53 (which concerns the determination of applications for CTOs) provides, in part: "(3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that: (a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and . . ." [Emphasis added.] Detention Forensic patients 109 The forensic patient remains in detention (in a mental health facility, correctional facility or other place) unless the criteria for release in s 43(a) of the Act (including that the safety of any member of the public will not seriously be endangered by the patient's release) are met. The Tribunal is not permitted to release a forensic patient without an independent risk assessment report: s 74(d). The Attorney-General has the right to appear and make submissions: s 76A(2). Involuntary patients 110 A person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered: ss 12, 14, 15, 38(3) of the Mental Health Act. The maximum period of detention is three months following a mental health inquiry: s 35(5) of the Mental Health Act. After three months, an authorised medical officer must apply to the Tribunal for a further involuntary patient order: s 37 of the Mental Health Act. Such reviews are required every three months for the first year, and every six months thereafter: s 37. Section 39 imposes a continuing obligation on an authorised medical officer to consider and cause the discharge if the patient's continued detention is no longer necessary. Release from detention Forensic patients 111 Only the Tribunal has the power to release a forensic patient: s 43 of the Act. The Attorney-General or the Minister of Health has the right to appear and make submissions when release is being considered by the Tribunal: s 76A(2) of the Act. The Tribunal may not release a forensic patient without an independent expert risk assessment report which addresses whether, relevantly, the safety of any member of the public will be seriously endangered by the person's release: s 74(d). The Tribunal must be satisfied that the safety of any member of the public will not be seriously endangered by the patient's release: s 43(a). Involuntary patients 112 Any authorised medical officer can discharge the patient at any time and must do so if the patient is not "mentally ill": ss 12, 39, 40, 42 and 43 of the Mental Health Act. The authorised medical officer must inform the Tribunal of discharge "as soon as reasonably practicable" (after the discharge). When conducting a mental health inquiry, the Tribunal is obliged to discharge an involuntary patient if no longer satisfied on the balance of probabilities that the patient is mentally ill: s 35(3) of the Mental Health Act. There is no requirement for an independent expert risk assessment report. 113 The Tribunal may also discharge an involuntary patient whom it is satisfied is mentally ill to the care of a primary carer or on a CTO (s 35(5) of the Mental Health Act) or grant leave of absence as it sees fit: s 47. Imposition of conditions while patient is living in the community Forensic patients 114 Section 75 of the Act empowers the Tribunal to impose conditions relating to various matters (including accommodation, treatment, medication, conduct, case management and drug-testing) when it orders the release of, or grants leave of absence to, a forensic patient. The objects in s 40 (which include to protect the safety of members of the public) are relevant to the exercise of the Tribunal's discretion under s 75. Civil patients 115 CTOs authorise the compulsory treatment of a person in the community by reference to a "treatment plan". The purpose of the CTO is to require the person to "receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan": s 56(1) of the Mental Health Act. It is confined to treatment. Accordingly, the matters that can be included in a CTO are many fewer than can be included in the conditions which a Tribunal can impose on a forensic patient who is released or granted leave of absence. 116 The maximum term of a CTO is twelve months: s 53(6). The Tribunal can make a CTO on the application of an authorised medical officer, a doctor or a principal carer: s 51 of the Mental Health Act and cl 8 of the Mental Health Regulation 2013. It can revoke a CTO on the application of a patient, case manager, or any person who could have applied for an order: s 65 of the Mental Health Act. There is no provision that either requires or permits the Tribunal to take into account safety of the community when deciding whether to revoke a CTO: s 65 of the Mental Health Act. Consequences of breach of conditions Forensic patients 117 A forensic patient is subject to the oversight of the Tribunal. Section 68 of the Act provides for a recall power (from release or leave of absence), including: if the person has breached a condition of his or her release (s 68(1)(a)); or if his or her mental condition has deteriorated and he or she is at risk of "causing serious harm to himself or herself or to any member of the public because of his or her mental condition" (s 68(1)(d)). Once a person is recalled he or she can be detained in a mental health facility, prison or other place (as determined by the Tribunal) and must be reviewed. Civil patients 118 The responsibility for overseeing a CTO rests with the patient (s 57(1) of the Mental Health Act) and the director of community treatment (s 58). If the patient does not comply with a CTO, the mental health facility which is responsible for implementing the treatment plan is to take steps to implement the CTO: s 58(1), including making a written record of the director's opinions (that: the mental health facility has taken all reasonable steps to implement the order; and there is significant risk of deterioration in the mental or physical condition of the affected person) and informing the person that any further refusal will result in the person being taken to the declared mental health facility or another facility for treatment: s 58(2). If the person refuses or fails to comply again, the director has a discretion whether to issue a breach notice requiring the person to attend for treatment: s 58(3). The breach notice must warn the person that a police officer may assist in compliance with the order. If the person does not comply with the breach notice, the director has the power to make a "breach order" that the person be taken to a specified mental health facility. Once there, the person may be given treatment in accordance with the CTO and assessed for involuntary admission to a mental health facility: s 60. Consideration of the effect of the different regimes 119 A principal focus of Part 5 the Act is the protection of the safety of members of the public. This is to be distinguished from the Mental Health Act, which contains provisions which concern the safety of other persons: such as in the definitions of mentally ill persons (in s 14) and mentally disordered persons (in s 15) where the "protection of others from serious harm" is a factor; and in s 43 where the authorised medical officer who discharges an involuntary patient must be satisfied that adequate measures will be taken to prevent the patient causing harm to, relevantly, "others". However, a reading of the Mental Health Act reveals that its principal focus is the interests of the person concerned, rather than the safety of persons who may be affected by his or her conduct. I reject the defendant's submission that the interests of the person always coincide with the interests of the community and that all references to "safety" in the Mental Health Act ought be read as including the safety of others. Plainly, it is in the interests of a person not to endanger the safety of others. However, the respective interests of the person and the community do not necessarily coincide. 120 I have set out the differences between regimes under various topics in order that the broader conclusions can be seen against the more detailed analysis. As long as the defendant is classified as an involuntary patient, there is little difference between the controls that apply to manage the risk and those that would apply if he continued to be a forensic patient. However, if that comparison were the only relevant or determinative one, there would be no need for the Act to apply to persons who are either "mentally ill" or "mentally disordered" since they would be able to be confined as involuntary patients under the Mental Health Act. 121 Generally speaking the onus in the Act is in favour of greater restrictions on the forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that a restriction is warranted. The classification from involuntary patient to voluntary patient can readily be changed. Moreover, any authorised medical practitioner can discharge the patient at any time and, indeed, is obliged to do so if the patient is not "mentally ill". 122 I consider the Attorney-General's right to be heard before a forensic patient is released to be an important safeguard. The Attorney-General can be taken to be the repository of the public interest in the safety of the community for that purpose. By this means, the Tribunal will have available a potential contradictor to clinicians who could reasonably be expected to put the patient's interests ahead of other interests and who could not reasonably be expected to be particularly attuned to the interests of the community as a whole. 123 Furthermore, the decision-making process for a forensic patient is more centralised since the Tribunal is the relevant decision-maker. It receives reports from relevant agencies and clinicians at its reviews which are required to take place at least every six months. Its reasons append summaries of previous reviews. This procedure has the effect that the background facts and previous clinical history of each forensic patient is readily available, at least in summary form, to the members that constitute the Tribunal. Under the Mental Health Act, the Tribunal is involved with civil patients only in the making and monitoring of a CTO. Aside from this matter, several people may have, and exercise, decision-making power over a person who is a civil patient (as appears from the comparative analysis set out above). In these circumstances, the collation of relevant information is likely to be more difficult. The quality of the decision how best to manage the defendant may be compromised by the difficulties of obtaining a comprehensive history. 124 Where a person is subject to a CTO in the community, enforcement is discretionary. While the Public Guardian may have certain powers (depending on the terms of the guardianship order), including coercive powers, there are practical limits to the way such powers can be used. The evidence presented to the Guardianship Tribunal in November 2012 (which led to the lapse of the guardianship order with respect to the defendant) illustrates the practical difficulties facing the Public Guardian in controlling and managing a person such as the defendant. 125 The resources available to the CJP are undoubtedly relevant but they would be available whether an extension order was made or not, since the Tribunal could, if minded to do so, release the defendant to secure CJP accommodation if, and when, it was persuaded that it was appropriate."

Unacceptable risk of causing serious harm to others: cl 2(l)(a)

1. Having regard to cl 2(1)(a), bearing in mind the limited inquiry for the purposes of cl 10 of Sch 1 in an interim hearing and noting that Adamson J found that the case on this limb was a "strong one": (Doolan (No 2) at [91]) the following considerations are relevant: 1. the defendant has a history of violent offending (which includes the use of a knife in the index offence and in the offence which led to the previous limiting term). The reports of Drs Read and Rodriguez suggest that the use of a knife by the defendant remains a risk; 2. the recent opinion of Dr Singh in her Risk Assessment Report supports the existence of a risk of violence on the part of the defendant. Dr Singh considered that this risk remained whether the defendant is classified as a forensic patient or not. Dr Singh identified the defendant as having a high loading of historical and clinical risk factors for violent offending. This opinion of Dr Singh is consistent with the opinions of mental health professionals who have cared for the defendant during the course of his most recent period as a forensic patient; 3. the defendant has been diagnosed with a substance abuse disorder and the abuse of substances had played a part in the majority of his past offences, including the index offence. The defendant's previous difficulty in abstaining from substance use when outside of a supervised environment is also relevant; 4. the defendant has a tendency to develop reactive aggression when he experiences stress. Dr Singh's report referred to the defendant having traits consistent with an antisocial personality disorder; and 5. the defendant has difficulty controlling his sexual and violent impulses which are influenced by delusions arising from the psychosis produced by his diagnosed schizophrenia. His schizophrenia is relatively uncontrolled by medication, particularly when regard is had to the side effects he has experienced from Clozapine. The defendant's long standing display of sexually disinhibited contact towards female staff, even in a highly controlled environment such as the Forensic Hospital, is also relevant. Dr Singh noted the defendant's problematic level of irritability and impulsivity despite being subject to assertive management in a highly regulated environment. Adamson J regarded the defendant's strong sexual and violent impulses and his inability to control those impulses as highly persuasive in relation to the first limb of the test for the making of an interim extension order.
2. When the totality of this material is taken into account, including the most recent reports of Drs Singh and MacDonald and the psychologists involved in his treatment, the matters set out in that material would if proved, demonstrate that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. The consequences of that risk, should further offences of this kind occur, are potentially very serious.

Whether the risk can be adequately managed by other less restrictive means: cl 2(1)(b)

1. In her Honour's decision on the previous application for an extension order in Doolan (No 2), Adamson J considered that the question of whether "means" are more or less restrictive was to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical question of how such power might be exercised in a particular instance. That analysis is set out [100]-[125] of Doolan (No 2) and is replicated in these reasons.
2. It follows that the primary analysis required by cl 2(1)(b) is a comparison between the risk of the defendant continuing to be managed as a forensic patients and the risk posed if he is managed as a civil patient in the community. In addition to the differences in the objects of Pt 5 of the Act by comparison with those of the MH Act and the Guardianship Act 1987 (NSW), the following factors should be taken into account for the purposes of that comparison: 1. the nature of the conditions that may be imposed while a person is living in the community. Section 75 of the Act empowers the Tribunal to impose conditions across a broad range of matters including accommodation, treatment, medication and conduct. In this case prohibitions on drug and alcohol consumption would be relevant. When the Tribunal orders the release of a forensic patient the objects in s 40 of the Act, including protection of the community, are relevant to the exercise of the Tribunal's discretion in imposing those conditions. In respect of involuntary patients who become subject to CTOs, the purpose of those conditions is to require the patient to "receive the medication and therapy, counselling management, rehabilitation and other services provided in accordance with the treatment plan". The matters that can be specified in a CTO are thus confined to treatment and are accordingly many fewer than can be included in conditions imposed under s 75 of the Act; 2. the maximum term of a CTO is only 12 months (s 53(6) of the MH Act), although a further order may be made at the end of that period. A CTO may be revoked on the application of a patient, a case manager or any person who could have applied for an order. This can be done without any requirement to take into account the safety of the community (s 65 of the MH Act); 3. forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall (after which a person can be detained as determined by the Tribunal), including if a person has breached a condition of release or his or her mental condition has deteriorated and he or she is at risk of causing serious harm to any member of the public as a result. The Tribunal receives reports from relevant agencies and clinicians at its reviews, which take place regularly and in a centralised fashion, which is likely to improve the quality of the decision making by ensuring that a comprehensive history is available; 4. by contrast, the responsibility of overseeing community treatment rests primarily with the patient and the director of community treatment. Enforcement is discretionary and while the director has power to make a "breach order" under s 60 of the MH Act, there is no requirement that he or she do so; and 5. even if the Public Guardian has coercive powers under a guardianship order, there are practical difficulties for the Public Guardian in controlling and managing a person such as the defendant, particularly if his whereabouts become unknown (this is a real risk given that the Tribunal concluded that he was at significant risk of absconding). This view was supported by Dr MacDonald's report. Such difficulties are clearly evidenced by the events leading up to the index offence.
3. It should be noted that the defendant's guardianship order (made 8 September 2020) does include coercive powers (e.g. to authorise police to take him to a place approved by the Guardian and return him to that place should he leave it). It also includes a power "to give or withhold consent as to whether an "environmental restraint" should be used to influence the defendant's behaviour. This power is subject to condition 6 of the order which provides that such environmental restraints may only be used as a last resort to prevent the defendant harming himself or others and in accordance with a behaviour support plan. In other cases, the Court has had regard to NCAT's reasons for an environmental restraint order of this kind. In Attorney General of New South Wales v WB (Final) [2020] NSWSC 152 at [12] (WB) such a condition was intended to provide the Guardian with sufficient authority to approve a "line of sight" provision.
4. There is a significant difference between the facts in WB and those in this case. In WB the defendant had a longstanding attitude of co-operation and compliance (although he had opposed the "line of sight" provision) and there was "no suggestion that, if the sanction available to the Tribunal was removed by him ceasing to be a forensic patient, he would undergo a marked change of behaviour and resist the guidance of his disability workers". In WB the defendant's level of risk was also assessed as being moderate to low. It was in this context that Ierace J was of the opinion that the second limb of the test in cl 2(1) of Sch 1 to the Act was not satisfied and that the "line of sight" provision in the guardianship order was sufficient to ensure supervision of the defendant.
5. The same conclusion could not be reached in relation to the defendant because of his risk of absconding, as identified by the Tribunal. It should also be noted that the defendant remains untested in the community. Even if the defendant did not leave his residence unaccompanied, there might be practical difficulties in maintaining the "line of sight" provision at all times while the defendant is out in the community, leading to opportunities to abscond which the defendant appears quite likely to take advantage of, having regard to his identified risks and past difficulties with compliance with supervision.
6. The Attorney accepted that the Tribunal had conditionally released the defendant as an inpatient in psychiatric hospital care, having determined that his release did not pose an unacceptable risk to either his own safety or the safety of other members of the community. The Attorney accepted that he had not made submissions to the Tribunal opposing the defendant's conditional release. It seems implicit in the Tribunal decision that it assumed that the proposed level of supervision and monitoring that would be provided for the defendant included a requirement that he comply with the conditions imposed under s 75 of the Act. What was made clear by the Tribunal's decision is the difference between the risk assessment carried out by it for the purposes of making its conditional release order and the risk assessment required to be carried out by this Court for the purposes of cl 2(1)(b).
7. Given the defendant's history there remains a significant risk that management of him under a CTO and the guardianship order made on 8 September 2020 would not be adequate to address the unacceptable risk he poses of causing serious harm to others. Given the extensive analysis of his background and offending by Adamson J, and in the more recent medical opinion obtained, there remains a significant risk that notwithstanding the best efforts of the NDIS support workers and the Public Guardian, the defendant would find himself in a similar position to that which developed when he was last released from custody. That was an occasion when he was in supported accommodation under the care of the Community Justice Program (CJP) and under a guardianship order with coercive powers. On that occasion, he did not comply with his medication regime, was not maintaining abstinence from alcohol and drugs and was not residing where he was supposed to.
8. While the Tribunal regarded the NDIS package approved for the defendant as sufficient to address his complex needs (and his guardianship order enables a "line of sight" provision, which does afford a high level of supervision), both Dr Singh and Dr MacDonald have identified the defendant's difficulties in complying with supervision in the past. Those difficulties do not seem likely to diminish in the future should he be supervised outside the highly controlled environment of the Forensic Hospital.
9. The discretionary character of the enforcement of a CTO and the limited forms of compulsion available to the Public Guardian caused problems in the past. In the case of the guardianship order, sufficiently serious problems arose when the defendant was last at liberty in 2012. Before the Tribunal the Attorney accepted that much more careful transition planning had taken place in 2020 for the purpose of reducing the risk posed by the defendant's release to the community. Notwithstanding that planning work, Dr Singh's opinion is that a CTO is unlikely to be sufficient to manage the defendant's risks, including that he is unlikely to adhere to a proposed treatment plan. His risk of absconding and risks associated with the consumption of alcohol and drugs are clearly more capable of being managed by him being subject to forensic patient status, because that status enables those risks to be compulsorily supervised via the imposition of conditions under s 75 of the Act. Those conditions have the benefit of a threat of a strict sanction should they not be complied with.
10. The conditions that may be imposed under s 75 of the Act (and have been imposed by the Tribunal in the defendant's case) are intended to be closely responsive to both his treatment and criminogenic needs. They are more extensive than may be provided under a CTO and will be monitored in a "conscientious and assiduous" fashion by the Tribunal if the defendant remains a forensic patient. Having regard to both Dr Singh's opinion as to the inadequacy of management under a CTO and the risk factors identified by other experts in relation to the defendant's difficulties in complying with supervision and his consumption of alcohol and drugs, I am of the opinion that in accordance with cl 10 of Sch 1 that the matters alleged in the supporting documentation would, if proved, justify a finding that the defendant's risk cannot be adequately managed by less restrictive means for the purposes of cl 2(1)(b).
11. In my view, the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. On the facts of this case, I am persuaded to a high degree of probability that it is appropriate to make an interim extension order. In reaching that conclusion, I note that this is a preliminary hearing. My view that an interim extension order is appropriate is not intended to foreclose a contrary view being reached at a later interim application or at the final hearing in the context of further evidence.

Orders

1. I make the following orders: 1. Pursuant to cl 6(5) of Sch 1 of the Act: 1. the Court appoints two qualified psychiatrists and/or psychologists to conduct separate psychological 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. the defendant is directed to attend those examinations. 1. Pursuant to cll 10 and 11(1) of Sch 1 to the Act the defendant be subject to an interim extension order commencing on and from 22 February 2021 for a period of three months. 2. I appoint Jennifer Thompson as the defendant's tutor in these proceedings.

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: 10 February 2021