HER HONOUR: The Mental Health Cognitive Impairment Forensic Proceedings Act 2020 (NSW) ("the Act") applies to the defendant as a forensic patient, that being, relevantly, a person who has been given a limiting term following a special hearing, and who is subsequently subject to an extension order and, further, is detained in a Correctional Centre. Section 121 of the Act empowers the Court to extend a person's status as a forensic patient by way of an extension order. The Court must bear in mind the objects of the Act, and I note those objects. If an order is to be made, the Court must be satisfied to a high degree of probability that, firstly, the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient and, secondly, that the risk cannot be adequately ameliorated or managed by less restrictive means: s 122.
The meaning of those provisions has been considered exhaustively by this Court and the Court of Appeal in the context of applications under the comparable High Risk Offender legislation, and it is not necessary for present purposes for the Court to turn to those authorities. The understanding of the statutory tests is greatly aided by that extensive judicial consideration, and I note the operation of the law.
In the defendant's case at this preliminary stage, the Attorney contends that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, and thus submits that the Court must make orders appointing appropriately qualified experts to conduct examinations of the defendant and to furnish reports of those assessments to the Court.
The test as to whether the supporting documentation would, if proved, justify the making of an extension order is a familiar one. It also has been considered extensively, in the context of High Risk Offender orders, the statutory test being relatively identical. The evidence that the Attorney relies upon in this matter is set out substantially in exhibit JF 1, together with the affidavits of Ms Fisher. The evidence establishes that the defendant is a man of 44 years of age. He has been found to have a mild intellectual disability, and a diagnosis of paedophilia has been made with respect to him. He has a number of convictions for sexual offending against children in this State, and in Victoria.
In the District Court of New South Wales, Judge Hunt imposed a limiting term of five years and six months upon the defendant in September 2019, following the court making qualified findings of guilt with respect to six counts of sexual intercourse with a person under the age of ten, and four counts of indecently assaulting a person under the age of sixteen. Those offences occurred between 2007 and 2011. These are the offences which are referred to in the material before the Court as "the index offences".
The defendant was thereafter deemed a forensic patient. He was additionally placed on the Child Protection Register in this State.
The limiting term imposed by Judge Hunt was set to expire on 1 December 2020, but there was, in September 2020, an extension of the defendant's status as a forensic patient sought by the Attorney. On the 23 February 2021, the matter came before his Honour Justice Wright, and his Honour made on that day a final order which extended the defendant's status as a forensic patient for a period of three years: Attorney General for New South Wales v Rohan (a Pseudonym) (Preliminary) [2020] NSWSC 1610. The order commenced on 1 March 2021, and it will expire on 1 March 2024. As a consequence, the defendant remains a forensic patient and he has been, and remains, subject to regular review by the Mental Health Review Tribunal "(MHRT" or "the Tribunal") in relation to his care, supervision and treatment. The Court has had the benefit of material from the Tribunal, or prepared for the Tribunal, in the course of its current considerations.
The defendant has been in custody for the index offences since 2015. He is presently housed in the Additional Support Unit at the Metropolitan Special Programs Centre at Long Bay, and he remains there presently, although there is some prospect that he will have both increasing access to leave in the future, and a plan formulated for his release to the community. I will return to that shortly.
In determining whether to make an extension order with respect to the defendant, the Court must consider each of the matters listed in s 127(2) of the Act, and any other matter considered relevant. The safety of the community is the first of the matters the Court must consider, and plainly, the defendant's history is of significant relevance to considerations of safety and future risk. As I have noted, the defendant has been diagnosed with paedophilia; he additionally has a mild intellectual disability. He has a very long history of serious sexual offending against children, additional to the offences to which I have already referred. That history commenced when he was still a teenager, and it appears to have continued in an opportunistic way ever since.
Bearing in mind the defendant's concession as to the preliminary orders which are sought by the Attorney, it is not necessary to set out the details of the defendant's offending history, and I do not propose to do so. The offences are disturbing, and the very existence of a history of the nature of that of the defendant points in a very real way to the likelihood of an ongoing risk of the commission of further such offences in the future.
When the District Court dealt with the most recent series of offences, in 2019, Judge Hunt characterised the offences as objectively serious, and he noted that there was some accompanying violence. There had been a profound and lingering effect on the victim of that offending, who, when the matter was before Judge Hunt, was noted to suffer with clinical anxiety, depression, and post-traumatic stress disorder which had, tragically, led her to struggle with issues of self-harming. Noting the defendant's history when the matter was before Judge Hunt, his Honour was able to assess the defendant's prospects of rehabilitation as only moderate. His Honour observed then that, given that the defendant's condition is pervasive, and that he seemed not to have benefited from treatment that had been afforded to him in the 1990s, his future dangerousness remained an issue because of the intractability of his mental condition. His Honour was satisfied that the defendant had a tendency to have a sexual interest in girls under the age of 11, and a tendency to act on that interest. Plainly, that also points to a real risk of the commission of further such offending.
The extension order that came before the Court in 2020 and 2021, was first before his Honour, Justice Hoeben, then Chief Judge at Common Law: Attorney General for New South Wales v Rohan (a pseudonym) by his tutor Johnson (Final) [2021] NSWSC. His Honour made an interim extension order of the type the Court is asked to make today, which extended the defendant's status as a forensic patient for a period of three months. His Honour further appointed two experts to provide reports to the Court, after having conducted an assessment of the defendant. The final order was made, as I've already observed, by his Honour Justice Wright, continuing the defendant's status for a further three years, with that three-year period concluding on the 1 March 2024.In considering the test under s 122, Justice Wright found that:
"It is far from certain that supervision under a guardianship order would be sufficient to protect the community, and especially children, from serious harm."
His Honour was of the view that any decision a guardian might make with respect to, particularly, the receipt of anti-libidinal medication, would be guided, as it must be, by the welfare of the defendant and not, primarily, by considerations of risk reduction to the community. Principally because of that, his Honour was not satisfied that a guardianship regime would be able to adequately manage the risk that the defendant posed to others. His Honour was of the view that an extension order for three years would provide the defendant's treating team with sufficient time to locate suitable accommodation for him in the community, such that his future released could be considered. That process has been ongoing. I will return to it, but there is a prospect of accommodation with family, for the future and, further, a prospect of accommodation in a group home facility.
In undertaking this task today, the Court is assisted by a number of reports of medical and psychological professionals. Doctor Andrew Ellis, a forensic psychiatrist, has prepared a risk assessment report, that report being dated 28 July 2023. Dr Ellis assessed the defendant on 13 July 2023. He had some familiarity with him because he had already assessed the defendant in 2021, as part of the Attorney's first application for an extension order, and provided a report to the Court on 17 January 2021. Dr Ellis continues to hold the views that he held at that time; that is, that the defendant has a diagnosis of paedophilia; and that his condition is directed at pre-pubescent children of both genders. The doctor described the condition as chronic and relapsing. Further, the defendant continues to meet criteria for a mild intellectual disability, unsurprising given that that is ordinarily a lifelong and unchanging condition.
Dr Ellis concluded that the defendant falls into the category of persons with an above average risk of re offending, due to the chronicity of his previous offending; the diversity in the victims selected; the psychological coercion he engaged in with the children; and his cognition issues. Further, the fact that the defendant continues to deny his sexual offending exacerbates risk, or at least contributes to an absence of reduction in the risk, because it has meant that the defendant has not been able to participate in intervention programs. Dr Ellis thought that the risk posed by the defendant in highly controlled environments was low but was not able to reach the same conclusion with respect to a less controlled environment. In the community, on the basis of Dr Ellis's report, it would seem that the risk to others is considerably elevated. The doctor regarded it as necessary for there to be continuing intervention to manage the risk and, indeed, Dr Ellis was of the opinion that 24-hour supervision was required, together with anti-libidinal medication to manage the defendant's risk overall.
The doctor thought there would be a clinical benefit to an extension of the defendant's forensic patient status by three years, although that was conditional on the basis that the defendant was released from custody conditionally, so that his treating team, and the MHRT could make an assessment of his capacity to move into the community and make a proper informed assessment of the likelihood of a return to offending sexual conduct. Dr Ellis did not consider the Mental Health Act 2007 (NSW) an appropriate regime under which to supervise the defendant because he is not, as a person with an intellectual disability, a mentally ill person, and he is not therefore eligible for involuntary admission to a mental health facility or, indeed, for the intervention of a community treatment order for medication. The doctor similarly regarded the supervision available under a guardianship order as inadequate, even when coupled with the defendant's status as a person subject to the Child Protection Register.
The Court has also had the benefit of reports from a number of psychologists, some with Statewide Disability Services. The report of Svetlana Chekhourdina of 17 August 2021, and reports from Doctor Sunita Misra of 30 March 2022 and more recently have been prepared by the authors for various hearings before the Tribunal. It is clear from the information in those reports that the defendant continues to deny his offending conduct, and, because of that denial, he has not been eligible for sex offender programmes in custody. He has undertaken some educational intervention. He has competed module 2 of the EQUIPS Foundation Programme (Explore; Question; Understand; Investigate; Practice, and Succeed) and he has also completed Certificate 1 in the Access to Vocational Pathways Programme. Because he has completed that latter programme, Dr Misra has advised in her report to the Tribunal, the defendant is now eligible for further programmes, including the RUSH, or Ready to Understanding of Self-Help Programme. He has recently been employed in what is regarded as a responsible floor position in an industrial unit.
There is a risk assessment report from Fatima Al-Sobai of 11 July 2022 that evaluated the defendant's risks and needs and, around the issue of recidivism, whether the defendant should be conditionally released. Ms Al-Sobai noted that if the defendant were to be granted conditional release, he would be supervised, with a case manager, in the community. Having conducted various assessments of the defendant, Ms Al-Sobai noted that the defendant received a score which placed him in an above average risk range for sexual recidivism. Ms Al-Sobai thought that there were a number of risk factors for the defendant, including his difficulty in maintaining relationships; his impulsivity; his history of problematic sexualised behaviour towards children; his difficulties in identifying risk scenarios and managing those risks; the lack of participation in sex offender programmes in custody, and the defendant's lack of insight. Ms Al-Sobai regarded the defendant as presenting with, "a high loading of dynamic risk factors" with minimal protective factors.
She opined that he requires significant risk management and intervention and was of the view that without appropriate risk management and support in the community, there was a very high likelihood of the defendant engaging in problematic sexualised behaviour with children. Ms Al-Sobai observed that while the defendant meets the criteria for sexual deviancy it is likely, at least, that that deviancy might be what she refers to as "counterfeit deviance", that is, a deviance precipitated by factors such as lack of sexual knowledge, poor social skills, limited opportunities to establish sexual relationships and sexual naivete, rather than deviancy more properly. Whether one regards the defendant as a deviant, or a counterfeit deviant, either way it is clear to the Court on the available material (if proved) that he proposes a profound risk to children, if unsupervised.
Ms Al-Sobai was of the view that the defendant requires an intense level of support, intervention, and risk management. She gave some consideration to the prospects of the defendant being released to a family property in a rural area to live with his father and sister, and was of the view that whatever accommodation he has, he will require continuous support.
Amy Stinson prepared another assessment of the defendant in September 2022 for the NDIS scheme. Ms Stinson similarly regarded the defendant's risk of re offending as extreme; she also referred to high risks of absconding and non-compliance with medication including, presumably any anti libidinal medication regime. Those risks manifest simply because of the defendant's cognitive impairment. Ms Stinson was of the view that the defendant will require very firm conditions upon his release to the community, including the prohibition on contact with children, and she thinks he requires a high level of support in the community.
The Court has also had regard to the report of Caitlin Rogl of 29 September 2022; Cynthia Pham and Michelle Fung of 27 January 2023; and further a report of Amity Dickerson of 29 March 2023; each of which informs the Court's assessment and conclusions that there is a very real risk to the community posed by the defendant if he is not supervised and, at least initially, very closely supervised indeed. Ms Pham, in her report, recommended that support workers should always have the defendant in what she refers to as "line of sight, or arm's length" when he is outside a controlled environment, and particularly at any location where children might be present. She regarded it as essential that workers were present to redirect the defendant if he became aware of the presence of children and began watching or gazing at those children. She recommended restrictive practices for environmental restraint be put in place to restrict his access to the community without supervision such as keeping him behind locked doors in any home in which he was residing and maintaining an escort regime for community access.
In short, all of that material, if it were proved in a final hearing, establishes that the defendant poses a risk, and in my view a very significant risk to the community, particularly children, were he to be in the community without a stringent regime of support and supervision. Implicit in that conclusion is the further conclusion that the sort of supervision which might be provided under other less restrictive regimes, such as guardianship, or were it to be available, the Mental Health Act, even having regard to the Child Protection Register to which the defendant will be subject on release, is inadequate to manage that risk.
The Mental Health Review Tribunal has maintained its supervision over the defendant and held regular assessments of him. The most recent assessment which has been performed by the Tribunal is described in documentation which is annexed to Ms Fisher's third affidavit. It appears from that recent review that, whilst there has been no change to the detention orders currently applicable to the defendant, there is some prospect that his regime of detention will be lessened, and there is a prospect for it to transition to community-based supervision.
The defendant's security classification has recently been reduced: he was C2 minimum security, and has gone to C3, representing, at least inferentially, some improvement in his behaviour in detention and a more favourable assessment of his risk. The Tribunal is satisfied that it is possible for the future to commence a programme of leave, so that the defendant will be able to have some experience of leaving a detention environment, and moving about in a supervised way in the community, and further, there are steps in progress for a reintegration plan to community living for the future and at least a reasonable prospect for the defendant to be adequately supervised either living in a rural community with family, and intense support and supervision, or perhaps as the better option residing, at least initially, in a group home with close supervision.
That is a very brief summary of the evidence in support of the Attorney's application, and as I have observed from time to time, it well satisfies, on the statutory basis that applies to a preliminary application of this nature, the criteria, such that the Court is minded to make the orders which the Attorney seeks, being those in prayers 1 and 2 of the summons filed on 26 September 2023. Those orders would have the effect of appointing experts to assess the defendant, and provide reports to the Court, requiring the defendant to attend those examinations, and extending the current status of the defendant as a forensic patient for a further three months on an interim basis, from 1 March 2024.
ORDERS
The parties are to agree short minutes of order, consistent with these reasons and provide them to my associate, for signature and entry.
The Court makes the following orders:
1. Pursuant to section 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"):
1. two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) be appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
2. the Defendant is directed to attend those examinations.
1. Pursuant to ss. 130 and 131 of the Act, the Defendant is subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 1 March 2024, for a period of 3 months thereafter.
2. The parties are granted liberty to approach the Registrar of the Supreme Court, copy to the Associate to Justice Yehia, to seek a date for further Directions to fix a date for final hearing and any consequent timetabling orders.
[2]
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: 23 November 2023
Parties
Applicant/Plaintiff:
Attorney General of NSW
Respondent/Defendant:
Rohan
Legislation Cited (2)
Mental Health Cognitive Impairment Forensic Proceedings Act 2020(NSW)