Attorney General of NSW v Williams

Satisfaction to a "high degree of probability"

1. As set out in s 122(2) above, in determining satisfaction to a "high degree of probability", the Court is not required to be satisfied that the risk of Mr Williams causing serious harm to others is more likely than not in order to determine that he poses an unacceptable risk of causing serious harm to others. Nor is the Court required to be satisfied that it is more likely than not that the risk he poses cannot be adequately managed by other less restrictive means.
2. The first limb of the test - "unacceptable risk of causing serious harm to others" is provided for in s 122(1)(a). Neither of the terms "unacceptable risk" or "serious harm" are defined in the MCHIFP Act.
3. For the purposes of s 122(1)(a), whether or not Mr Williams poses an "unacceptable risk of causing serious harm to others" is to be assessed independently from s 122(1)(b). That is, the assessment must be made on the assumption that Mr Williams would be neither a forensic patient nor an involuntary patient and would be released into the community at the end of his extension order without any oversight by the courts or the Tribunal: Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [10] (R A Hulme J).
4. The meaning of "unacceptable risk" was considered in the context of high risk offenders by Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51] ("Lynn"): "As the respondent pointed out in its submissions, by reference to dictionary definitions, the word 'unacceptable' requires context in which, or parameters against which, the 'unacceptable' risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is 'so far from a required standard, norm expectation, etc as not to be allowed'. The Oxford Dictionary defines the word by reference to its antonym 'acceptable'. Something is 'acceptable' if it is 'tolerable or allowable, not a cause for concern; within prescribed parameters'. What the court, therefore, must find to be unacceptable is the "risk" that the offender poses 'of committing a serious violence offence if … not kept under supervision'. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made." (Emphasis in original.)
5. In Lynn, Basten JA stated at [126]: "The nature of the risk…posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community…"
6. The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the objects of s 69 of the MHCIFP Act and must have regard to the matters listed non-exhaustively in s 127(2). Importantly, unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).
7. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).
8. The meaning of "serious harm" is, as noted above, undefined in the MHCIFP Act, although the same term is used in s 14 of the Mental Health Act 2007 (NSW) (the "Mental Health Act"). The phrase "serious harm" is not defined by the Mental Health Act either. It has been accepted that it includes physical or psychological harm, albeit subject to the requirement that the harm be "serious": see the discussion in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] (R A Hulme J); referred to by Chen J in Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274 at [25].
9. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107, Adamson J undertook a detailed analysis of the regimes for the treatment of mentally ill people under the MHFP Act as forensic patients, compared with the Mental Health Act as involuntary patients, and analysed the key differences between the two regimes.
10. At [121] her Honour expressed the main distinction between the regimes as follows: "Generally speaking the onus in the [MHFP] Act is in favour of greater restrictions on a 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."

Statutory pre-conditions are satisfied in this case

1. The transitional provisions in Schedule 2, clause 3(1) of the MHCIFP Act apply such that the finding of qualified guilt, which was in force just prior to the commencement of the provisions of the MHCIFP Act, which replaced the former power to make such an order, is taken to have been under the MHCIFP Act.
2. Mr Williams is a "forensic patient" as defined in s 72(1)(b) of the MHCIFP Act because he was made subject to a limiting term by McLennan SC DCJ, and his status was extended by Garling J until 30 January 2023, as noted above.
3. An application for an extension order may be made in relation to Mr Williams because he is subject to an existing extension order, and it is no more than 6 months before the expiry of the existing extension order on 30 January 2023 (s 124 of the MHCIFP Act).
4. Further, a risk assessment report prepared by Dr Richard Furst and an affidavit of Ms Melinda Smith accompanies and supports the application (s 125 of the MHCIFP Act).

Relevant legal test in relation to preliminary orders

1. On an application for preliminary orders, the Court is not engaged in the task of weighing up the material contained in the evidence, or predicting the ultimate result of the plaintiff's final substantive application.
2. Pursuant to s 126(5) of the MHCIFP Act, the Court needs to be satisfied that the matters alleged in the supporting documentation provided by the plaintiff would, if proved, justify the making of an extension order.
3. This test has been said to be analogous to that which formerly applied to the determination of whether a prima facie case existed sufficient to justify the committal of a defendant to stand trial: see Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [16]; Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [38]; New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].
4. Fullerton J observed in State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 at [10] that: "[T]he more accurate formulation, consistent with the test in s 5B(d), is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision."
5. It is appropriate on an interim application such as this to give weight to risk avoidance: see Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]. I also bear in mind the objects of Part 6 as set out in s 69 of the MHCIFP Act.
6. It is well settled that the test to be applied at a preliminary hearing is not a stringent test: see State of New South Wales v Lynn [2013] NSWSC 1147 at [17]-[18]; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041; State of NSW v Sancar [2016] NSWSC 867.

The evidence

1. Pursuant to s 125 of the MHCIFP Act, an application must be supported by documentation that addresses each of the matters referred to in s 127(2), to the extent relevant, and must include a report prepared by a qualified psychiatrist, registered psychologist, or medical practitioner that assesses the risk of the forensic patient causing serious harm to others as well as the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means. The following documentary material was tendered or read on behalf of the plaintiff at the hearing, and satisfies s 125 of the MHCIFP Act: 1. The affidavit of Melinda Evelyn Smith affirmed 23 September 2022 together with Exhibit MS-1, which was referred to in the affidavit and comprised of two volumes; 2. The affidavit of Tina Wu affirmed 18 November 2022; 3. The decision of the Mental Health Review Tribunal delivered 2 November 2022 (annexed to a covering letter); 4. The JusticeLink printout indicating the judgment for the special hearing is due to be delivered on 5 December 2022; 5. The email correspondence in relation to the special hearing.
2. The following documentary material was read on behalf of Mr Williams at the hearing: 1. The affidavit of Dr Frank Ainsworth affirmed 10 October 2022; 2. The consent to act as tutor filed 24 October 2022.
3. I also note that following the hearing, on 7 December 2022, I was informed by email of the result of the special hearing before Hunt DCJ.

Consideration of matters in s 127(2) of the MHCIFP Act

1. The material which has been tendered addresses the matters in sub-ss 127(2)(a), (c), (d), (e), (f), (g), (h) and (i) of the MHCIFP Act. It includes the following information, reports, and assessments. I note below some of the most significant matters covered in the material.

The index offence

1. On the afternoon of 20 September 2018, Mr and Mrs Boulter were at home in Banora Point (in the Tweed Heads region) and speaking on the phone in the kitchen area when Mr Williams climbed onto the front veranda and opened a glass sliding door that was closed but not locked. Once inside, he went into the main bedroom and stole Mrs Boulter's handbag and her jewellery box. He left and went to a unit where he was staying. He was arrested the following morning and found to be in possession of some of the items. He initially denied being involved in the break and enter, but later made certain admissions, although he said that the sliding door was open. Mr Williams said that he did not know that there were old people in the house until after he left the bedroom and was on his way out of the house. McLennan SC DCJ found as a fact that Mr Williams knew that there were people in the house just before or while he was in the bedroom taking the property. Mrs Boulter was 76 years old at the time of the offence. Mr Williams stated he was a "bit smashed" on "weed" whilst committing the offending.
2. A fitness hearing was conducted before McLennan SC DCJ on 28 February 2020, with both experts Dr Sally McSwiggan (consultant neuropsychologist) and Professor David Greenberg (forensic psychiatrist) opining that Mr Williams was unfit to be tried because he suffered from an intellectual disability. This disability was of such a nature that he had no more than a rudimentary understanding of the legal proceedings and thus failed the Presser test of unfitness. [4] His intellectual disability meant that it was unlikely he would become fit within 12 months. McLennan SC DCJ found Mr Williams unfit, and the matter was referred to the Tribunal.
3. The Tribunal conducted a review under s 16 of the MHFP Act on 16 July 2020 and on 30 July 2020, determined that Mr Williams had not become fit to be tried and would not become so within 12 months of the Court's finding of unfitness. The Tribunal noted the contents of the expert reports before McLennan SC DCJ, which included an assessment of Mr Williams' intellectual capacity as falling within the extremely low range and noted his coexisting substance use disorder.
4. In March 2021, following a special hearing conducted by McLennan SC DCJ, a qualified finding of guilt was made and Mr Williams was sentenced to a limiting term of 2 years and 5 months. In the course of his reasons, McLennan SC DCJ assessed the objective gravity of the offending as below the mid-range but above the low range. His Honour took into account factors including the following: the offending occurring during the day; there was no damage to the property nor "gross ransacking" of the house; the inhabitants were not confronted; Mr Williams only knew of the inhabitants' presence inside the house after he entered but before he stole the property; and much of the stolen property was recovered. Mr Williams' cognitive impairment and deprived background was taken into account as reducing moral culpability and meaning that he was not a suitable vehicle for general deterrence. Some remorse was found. Whilst he had some prospects of rehabilitation, McLennan SC DCJ found that they were not good given his consistent offending over the previous eight years and his significant drug problem.

Reviews by the Tribunal

1. From July 2020 onwards, Mr Williams has been reviewed by the Tribunal a number of times. On 9 August 2021, the Tribunal concluded that Mr Williams remained unfit to be tried. He was transferred to Clarence Correctional Centre where, as at the date of the hearing before me, he remained, essentially so he could be closer to his family and his girlfriend.
2. Mr Williams was further reviewed by the Tribunal on 7 April 2022, with the Tribunal concluding on 21 April 2022 that he remained unfit to be tried.
3. A further review was conducted by the Tribunal on 6 October 2022, with the Tribunal again concluding on 2 November 2022 that Mr Williams remained unfit and that there should be no change to the current order. That review was in part informed by a supplementary report prepared by a psychologist with the Statewide Disability Services (SDS) (which was also included in the materials before me). It was noted that Mr Williams had incurred seven institutional misconduct charges since the last report of March 2022, including possession of a weapon, failing to comply with correctional routine, and failing a prescribed drug test. Mr Williams was noted to have recently commenced employment at the metal workshop and had expressed interest in working in the kitchen. He had engaged in playing touch football and had been receiving regular visits from his mother and his girlfriend.
4. It was further noted that he had recently been accepted into the CSP program (which was not further described), and he had been allocated a particular person as the case manager. It was concluded that Mr Williams "continues to progress as well as can be expected, under his current detention order." A degree of uncertainty remained because the outcome of the special hearing listed for November and the outcome of the extension application was not known. The Tribunal was satisfied with the current arrangements, with a further review to be conducted in 6 months.

Report of Dr Richard Furst

1. Dr Richard Furst is a forensic psychiatrist. He prepared a report dated 8 August 2022 based on an examination of Mr Williams. Dr Furst noted he had previously assessed Mr Williams in August 2021 for a similar purpose. The report from that prior assessment was also included in the materials tendered before me.
2. Dr Furst noted that Mr Williams had been charged with further offences whilst on bail for the index offence including resist or hinder police officer in the execution of duty; goods in custody; dealing with proceeds of crime under $100,000; possess housebreaking implements; possess unauthorised pistol; and possess prohibited drug. Dr Furst also noted that Mr Williams had been charged with further offences which were the subject of the special hearing in November 2022 (with the result not known to him at the time his report). These offences included being armed with intent to commit indictable offence and robbery armed with offensive weapon cause wounding/grievous bodily harm.
3. Dr Furst noted that Mr Williams has a history of learning difficulties consistent with an intellectual disability, including broad deficits in reading, writing and maths. His literacy skills were poor at school and remain poor. He has never been diagnosed with a major mental illness and has never been admitted to a psychiatric hospital. He has not had a girlfriend nor sustained an intimate relationship until 2020, when he commenced his current relationship with his girlfriend.
4. He reported longstanding cannabis use from the age of 16 or 17; and also using "ice" (methylamphetamines) from the age of 22 - which he said he used on and off. He reported using "a fair bit of meth" when he was last at liberty in the community in January 2021, and estimated his usage to be about 0.4g per day. He also smoked about 1g of cannabis per day. He claimed the drugs relaxed him and took his mind off his past.
5. His parents both drank heavily and used cannabis. He does not recall his parents working and his siblings have not worked in paid employment. There is no family history of mental illness. He was exposed to violence in his childhood, including his father being violent to his mother. He denied any specific childhood physical or sexual abuse.
6. His criminal history is extensive with offences commencing as a juvenile at 15 to 16 years of age, and incarceration commencing at 18 years of age. He had a number of further incarcerations over the years, mainly in relation to break and enter offences. He nominated boredom as the motivation for reoffending on one occasion. One of the break and enter offences involved a 93-year-old pensioner at Casino in 2015, in relation to which he stated "I was going out one night and came across the house with my mates". In relation to another offence at Grafton, he stated there was a "misunderstanding", and a conflict between his cousin and friends. He ended up pleading guilty to assault occasioning actual bodily harm in company. As noted above, he was charged with further offences whilst on bail for the index offence.
7. Dr Furst noted a pattern of poor community adjustment and a pattern of re-offending when released into the community from juvenile detention facilities and adult correctional centres extending back over 10 years, with offences often taking place in the company of criminally inclined friends or associates. Dr Furst noted that Mr Williams was not very insightful, reflective, or remorseful.
8. Dr Furst noted Mr Williams' funding access under the National Disability Insurance Scheme as a consequence of his intellectual disability. He also noted that his girlfriend and mother were supportive, and that they were in regular contact with each other in 2021 and 2022, with weekly visits from his girlfriend taking place. 12 institutional misconduct charges were noted, including sanctions for not obeying directions, fighting, and assaulting other inmates. Indeed, I note that Mr Williams has committed 13 misconduct offences relating to physical assaults, fighting and intimidation, nine of which have occurred since he committed the index offence.
9. Dr Furst noted that Mr Williams presented in much the same way in both his mental state examinations in 2021 and 2022, presenting as simple in his manner and optimistic for his future. He did not think drugs would be an issue for him. In the examination in August 2022, Mr Williams said he had a NDIS worker in Casino called Sari who "has all these programs for me to do… literacy and numeracy".
10. Dr Furst provided a helpful summary of various neuropsychological testing which were consistent in showing that Mr Williams fell in the mildly intellectually disabled range. Other psychiatric and psychological reports noted by Dr Furst included assessments that Mr Williams met the criteria for the diagnosis of a substance use disorder, and had a biological vulnerability towards addiction which was reinforced by the behaviour of poor role models, including his parents, as he was growing up.
11. Dr Furst noted that in the psychological report by Ms Kathryn Wakely, she utilised a Self-Appraisal Questionnaire (SAQ) to determine that Mr Williams had a score which placed him in the High to Moderate range in relation to general and violent recidivism compared to other offender groups.
12. Dr Furst was of the view that the test administered by Corrective Services NSW (the Level of Service Inventory - Revised (LSI-R)) on 29 May 2020, which showed that Mr Williams had a medium risk level in relation to general offending, underestimated Mr Williams' true risk of re-offending, especially when he analysed his criminal history in detail. Dr Furst opined that Mr Williams' risk went beyond his anti-social lifestyle and alcohol and other drug use - noting a pattern of escalating offending and more serious offending over recent years. He noted that more recent offences included possessing an unregistered firearm pistol and dealing with proceeds of crime.
13. I note that Dr Furst included in his analysis the most recent serious charges alleged against Mr Williams. One of those charges, aggravated armed robbery causing wounding, was certified for trial. Following the finalisation of Dr Furst's most recent report, Mr Williams was found not guilty of this charge at the recent special hearing. Even though this charge was not proved to the requisite standard (and I am not aware of the basis on which this finding was made), from the material before me, there appears to be some objective evidence by way of video that Mr Williams was seen holding a large knife or machete around the time of the alleged offence. However, in all of the circumstances, especially given the finding made on the special hearing, I give this material limited weight. I have also taken into account the recent not guilty finding when assessing the report of Dr Furst.
14. Dr Furst helpfully summarised the prison management documents, Justice Health medical entries, and also further expert psychological reports. He referred to a report prepared by Mr Bradley Jones, a forensic psychologist, dated 14 December 2021 where Mr Williams was noted to be at risk of causing serious harm to others who have a lack of insight into his past offending, lack of insight into his mental health disorders and lack of mental health treatment. His girlfriend was seen as a protective factor. A report from Dr Jeremy O'Dea, a forensic psychiatrist, dated 17 December 2021, assessed Mr Williams as having a serious risk of causing serious harm to others. Ongoing monitoring as a forensic patient was recommended.
15. Dr Furst also referred to the SDS report dated 6 January 2022, which recommended a custody based intensive drug and alcohol treatment program (IDATP) in relation to his addiction issues (which was not then available because of his current classification and his inability to participate in programs). The report also recommended improving his foundational skills through education and maintaining engagement and appropriate support through SDS and health services at Clarence Correctional Centre.
16. The SDS report of 29 March 2022 identified ongoing problems in relation to Mr Williams' behaviour in custody. Although Mr Williams expressed interest in participating in the CONNECT program, it was not then available at Clarence Correctional Centre. Dr Furst noted that it would appear that Mr Williams was not engaging in any therapeutic program, had not had regular psychology sessions, had not seen a psychiatrist in custody since being incarcerated in January 2021, and lacked sufficient literacy skills and classification status to engage in a drug and alcohol program of a suitable intensity, such as IDAPT.
17. Dr Furst concluded that Mr Williams suffered from a permanent condition of intellectual disability, and also a substance use disorder. The combination of his intellectual disability, antisocial behaviour, and poor role-modelling led to risk factors including impulsivity, deficits in consequential thinking, poor communication skills and deficits in abstract thinking and decision-making. He appeared to learn little from past mistakes and offending and lacked empathy for others as well as showing no remorse. These factors increased his risk of future offending, and his substance use disorder amplified that risk. Dr Furst stated the combination of factors, coupled with Mr Williams' inability to learn from previous criminal sanctions and sentences, made it highly likely that he will continue to commit further crimes in the future, most likely associated with an escalation of violence including the use of weapons, placing members of the community at risk of serious harm as a consequence of his criminal/offending tendencies.
18. Dr Furst identified the most important risk management intervention as structural and supervisory, specifically a significant increase in his level of supervision when next released to the community on conditional release involving supervised independent living and a significant increase to his NDIS funding package. Dr Furst opined that those measures would require ongoing management as a forensic patient. It was Dr Furst's opinion, for the reasons he set out in his report, that no other less restrictive means are available to manage Mr Williams' risk. Further, it was his view that Mr Williams would likely need a further period of at least two years of supervision as a forensic patient. While Mr Williams may well need longer supervision, Dr Furst was of the view that a longer period of five years may demoralise Mr Williams, especially given his aspirations to live with his girlfriend and his connections with his mother and extended family in the local community.

Determination

1. I have carefully considered the very thorough report of Dr Furst tendered in compliance with s 125(b) of the MHCIFP Act and the detailed analysis he has conducted to reach his assessment of Mr Williams' risks of causing serious harm to others, and why there are no other less restrictive means that would adequately manage those risks. I have also had regard to the other material tendered at the hearing.
2. As noted above, Mr Williams does not oppose the interim orders being made.
3. On the basis of the material before me, I am satisfied that the matters alleged in the supporting documentation provided by the plaintiff would, if proved, justify the making of an extension order. Accordingly, I am of the view that the interim orders sought should be made.

Orders

1. I make the following orders: 1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Court: 1. appoints two qualified psychiatrists, two registered psychologists or two registered medical practitioners (or any combination of two such persons) to conduct separate examinations of Maurice Percy Williams and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; 2. directs Maurice Percy Williams to attend those examinations; 1. Pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Maurice Percy Williams is subject to an interim extension order for the extension of his status as a forensic patient commencing on 30 January 2023 and expiring on 29 April 2023; 2. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Endnotes

1. The summons was stamped as eFiled on 24 September 2022.
2. MHCIFP Act s 2; New South Wales, Commencement Proclamation, No 116, 19 March 2021.
3. "Tribunal" means the Mental Health Review Tribunal (constituted under the Mental Health Act 2007 (NSW): MHCIFP Act s 3(1).
4. R v Presser [1958] VR 45.

Amendments 19 January 2023 - Amended the formatting of footnotes 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: 19 January 2023