The Attorney General, by summons filed 19 May 2016, makes an application for a further extension order under cll 5 and 7 of sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act") (see s 54A of the Act). The defendant, who will be referred to in these proceedings as HRM, is a forensic patient in respect of whom such an application may be made by virtue of him being subject currently to an interim order of that type, made by a judge of this Court which I am informed expires on 31 August 2016.
Orders have been made by judges of this Division of the type sought by the Attorney General for a number of years now. The first order other than an interim order was made by Garling J on 21 March 2014. His Honour's reasons for making that orders are published in Attorney General of NSW v [HRM] (No 2) [2014] NSWSC 288. In making this decision, I have drawn upon his Honour's reasons as well as the evidence which the parties have led before me. That evidence consists of, on the plaintiff's side, three affidavits of Ms Rita Giurastante, sworn 19 May 2016, 3 June 2016 and 11 August 2016, including attachments and a large number of relevant documents in two exhibits marked RG1 and RG2.
Additionally I have received the evidence of experts appointed by the Court under cl 6 of the schedule, being the report of Professor Susan Hayes of 11 June 2016 (Exhibit A) and the reports of Dr Kerri Eagle of 10 July 2016 (Exhibit B).
The defendant has read an affidavit of his solicitor, Mr Todd Davis, sworn on 12 August 2016, and an affidavit of Ye Jun Wu, sworn on 15 August 2016. Mr Wu is an officer of the Community Justice Program ("CJP"), which currently provides supervision and support to HRM pursuant to conditions imposed by the Mental Health Review Tribunal in implementing this Court's previous orders.
I have also received as Exhibit 1 the reasons for decision of the Guardianship Division of the NSW Civil and Administrative Tribunal made on 30 July 2016, adjourning an application made for the appointment of the Public Guardian as HRM's guardian for purposes relevant to this application.
The powers of this Court under cl 7 are restricted to either making an order as sought, or by dismissing the application. In determining whether or not to make an order, I must have regard to the mandatory considerations set out in cl 7(2) of the schedule.
Given that the parties are agreed that an order should be made, and having regard to the consideration that this matter has been dealt with on many prior occasions by judges of this Court, I propose to deal briefly, and in general terms, with the matters referred to in cl 7(2).
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Relevant history of offending and proceedings
HRM became a forensic patient by virtue of him coming to the attention of the authorities as the perpetrator of three sexual assaults upon the same victim in her own home, in the presence of her five-year-old daughter. The offences occurred contrary to the provisions of s 61I of the Crimes Act 1900 (NSW) on 17 August 2016. He was committed to stand trial by the Local Court on 4 December 2007, and on 25 August 2008 Judge Garling of the District Court, sitting at Nowra, decided that he was not fit to plead, referring HRM, who was then in custody on remand, to the Mental Health Review Tribunal.
On 4 September 2009, her Honour Judge Murrell (as she then was), conducting a special hearing under the provisions of the Act, decided, in the statutory formulation, on the limited evidence available to her that HRM had committed each of the three sexual assault offences charged. She stayed a fourth charge brought under s 112 of the Crimes Act on the basis that its elements were fully encompassed by the sexual offence charges. Judge Murrell made orders under s 24 of the Act referring HRM to the Tribunal, and that he be detained in custody.
On 26 August 2013, the Tribunal, exercising its powers under s 47(1)(b) of the Act, released HRM into the community, subject to a comprehensive set of conditions. An interim order under cl 10 of schedule 1 was first made by this Court (Davies J) with effect from 31 December 2013. As I have said, Garling J made the first order of a final nature. A further extension order was made by Rothman J in 2015 and various interim orders have been made to cover the period since the expiration of that order.
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Community safety, risk assessment and the opinions of court appointed and other experts
I should record that there is no doubt that HRM suffers from a mild to moderate intellectual disability, probably congenital in origin or perhaps acquired in a near drowning incident when he was an infant. It was for this reason that he was found unfit to plead.
The first and primary consideration to which I must have regard is the safety of the community. That matter must be assessed generally, but it also behoves me to say that over the years many formal actuarial assessments of the risk that HRM presents, substantially of reoffending, have been assessed by highly qualified psychologists and psychiatrists. These matters have been most recently addressed by Professor Hayes in Exhibit B, whose views I must take into account as she is a court appointed expert.
Generally speaking, the actuarial tools employed in the case have indicated that HRM remains in the category of a moderate to high risk of reoffending, substantially based upon the history of him having committed the index offences. The relevant factors in relation to that matter include that the victim was a stranger to him, a prior history of offending of a non-sexual type, and his involvement in the criminal justice system.
Ms Single of counsel and Ms Kluss of counsel, who appear for the plaintiff and defendant respectively, are agreed that perhaps the most significant actuarial tool is the ARMIDILO-S, which relates specifically to individuals with developmental and intellectual limitations who have offended sexually, into which category, as I have said, HRM falls. Interestingly, on that scale, his risk is rated as a moderate risk rather than a high risk.
I also record that Dr Andrew Ellis, who like Professor Hayes has examined HRM a number of times over the years, assessed him as being unlikely to reoffend. This is because of the absence of any diagnosis of paraphilia or any expressed interest in deviant sexual behaviour, as well the consideration that the risk of sexual re-offending diminishes with age, him now being in his 40s.
Over the last three years, since he has been supervised in the community, he has been commendably compliant with the conditions imposed upon him by the Mental Health Review Tribunal, with one potentially significant exception to which I will return. Those conditions include being subject to the supervision, some would prefer the word support, of the CJP, taking anti-libidinal medication and medication to suppress his cravings for alcohol.
The matter to which I referred is an instance of noncompliance occurring in late 2015 and early 2016, which led to HRM being compulsorily treated as an inpatient at the Nepean Hospital. The circumstances of that related to him: failing to take his medication; failing to keep appointments with his treating psychiatrist; admitting to taking alcohol and therefore breaching the abstinence condition; and expressing inappropriate sexual interest in relation to a female who was a stranger to him. It is obvious, looking at the history of the index offending in this case, that dis-inhibition brought about by intoxication was a significant factor in what occurred. The offences were preceded by significant intoxication and the expression by him of sexual interest in the victim whom he happened to see, and who, as I have said, was a complete stranger to him.
It may be, as Ms Kluss argues, that this occurrence is the exception which proves the general rule that HRM has indeed made excellent progress whilst subject to the supervision of the Tribunal. On the other hand, given the significant parallels between that breach of the conditions and the offending which last brought him to the attention of the criminal justice system, it may well have more significance when one is considering whether an extension order should be made in this case. On balance, and bearing in mind the high degree of probability required to justify an order, I am satisfied that it does fall into the latter category. However, HRM is again compliant with the conditions imposed by the Tribunal.
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Availability of a less restrictive regime
A matter which is of particular significance to the question of whether an order should be made in this case is that there is a substantial body of opinion which suggests that the same result in terms of managing the risk HRM poses to public safety could be achieved by less restrictive means (cl 2 (1)(b) of schedule 1). That is to say that a combination of supports, including relevant orders under the Guardianship Act 1987 (NSW), the availability of community treatment orders when necessary, and ongoing support by the current service providers, the CJP, could achieve the same result. For instance, the appointment of the Public Guardian could ensure that HRM continued with the medication treatment he is currently receiving. Likewise, appropriate decisions about accommodation could be made by the Public Guardian and, on the assumption that he continues to reside in the greater metropolitan area, the 25 hours of support he is currently receiving from the Community Justice Project could continue. Indeed, to a greater or lesser extent, Dr Ellis, Professor Hayes and Dr Eagle are attracted to that option in the longer term as a means of managing HRM's condition and the risk that he presents to the community.
It is notable that this has been a recurrent theme in the various applications made to this Court over the last few years, and perhaps is a reason why judges of the Court have been persuaded that an order of 12 months duration, a relative short period in this area of discourse, is the appropriate order to make.
A difficulty with me concluding that such a regime - I will refer to it as a therapeutic regime - is appropriate at this time is that the evidence before me from Mr Wu is to the effect that if HRM was no longer a forensic patient, the provision of CJP's services to him would depend upon their assessment of him anew as to whether he is entitled to that ongoing support, and more significantly perhaps, upon the voluntary agreement of HRM to participate in their program.
The evidence suggests that he appreciates the support he receives from CJP and enjoys his interaction with its officers. On the other hand, he has from time to time said to caseworkers that left to himself, he would just as soon not take the anti-libidinal medication and no doubt left to himself, he would prefer to suit himself rather than complying with the conditions which have been imposed so far by the Mental Health Review Tribunal. That makes it difficult for me to be persuaded at this stage that the therapeutic option is a viable one.
The second thing is that from the reasons of the Guardianship Division, it does seem that the learned members of NCAT have hesitation about making orders in a case where the Supreme Court has made orders under schedule 1 of the Act and the person is subject to ongoing supervision by the Mental Health Review Tribunal. Whether or not that is a correct view of the availability, or utility, of guardianship orders, of course, is a matter which in the first instance will fall for decision by NCAT.
However, it does seem to me that the difficulty in this case - approaching the level of catch-22 - is that given the virtually unanimous opinion of the experts that HRM does need help and support to manage the risk that he does present to the community, this Court cannot be satisfied in the absence of an alternative less restrictive regime already in place that the application at hand should be dismissed. It seems to me that HRM does present an unacceptable risk to community safety. The risk is unacceptable not because it is a high risk and not because it is likely to occur.
As I have said, the evidence seems to be that the risk presented by HRM is unlikely to materialise. On the other hand given the nature of the risk, being the commission of a further sexual assault or assaults, and as his underlying condition is permanent and incapable of improving it is to my mind, and in my judgment, unacceptable. Nonetheless, I think that the risk could be managed, given its low level and its low probability of occurring, by the therapeutic option, provided its integers were in place so that there could be a seamless transition from the more restrictive orders under the schedule to the therapeutic option which would allow HRM to be managed in the community rather than under the close supervision of the Mental Health Review Tribunal.
The experts appear, on a fine balance, to support a forensic approach to HRM because of the capacity of the Tribunal to take coercive steps in the event that there is any further instance of backsliding on the part of HRM (see s 53 of the Act). At the same time, I acknowledge that it has been unnecessary for him to be recalled to a corrections centre, and doubtless in circumstances where he became significantly non-compliant, the option of a community treatment order may be available. I say may be available because as Ms Kluss points out, there was no real evidence that he has a psychiatric illness, although there are late suggestions perhaps of some psychotic elements in his symptomatology. As things presently stand there would be a lacuna between expiration of an extension order and implementation of the therapeutic option.
It would be unfortunate if in considering the adjourned application, NCAT thought there was some kind of forensic demarcation between its legitimate sphere of operation and the Supreme Court's jurisdiction. It seems to me that there is a need in this case, I will comment, for a transition. But I stress, that the exercise of its powers is a matter for NCAT and not for me when disposing of this application.
Although I have not dealt with them seriatim, I have, as I commented at the outset, had regard to, so far as they have been relevant and before me, all of the matters enumerated in the paragraphs of cl 7(2). I am satisfied to a high degree of probability that it is necessary to make the order sought by the Attorney General. At this time, I am not satisfied that a less restrictive regime is available, although I express the hope that it may be appropriate to transition to a less restrictive regime in the future.
Orders:
1. Under section 54A and clauses 1 and 8 of schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"), I order HRM be subject to an extension order for a period of one year commencing on 24 August 2016 and expiring on 23 August 2017.
2. Under cl 7(3) of the Act, direct the Registrar to notify the Mental Health Review Tribunal of the making of this order;
3. Grant leave for the report of Dr Ellis of 12 May 2016 and Exhibits A and B to be relied upon in respect of HRM in the adjourned proceedings before the NSW Civil and Administrative Tribunal in its Guardianship Division.
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Decision last updated: 25 August 2016