New South Wales Minister for Mental Health v Brauer

The index offence

1. On 1 January 2011 the defendant approached a bus parked behind a block of flats in Inverell, where children aged between 2 and 11 were playing. He removed his clothes. He pulled a four-year old girl through the window of the bus and dragged her towards his residence, which was one of the units in the block. He placed her on the ground and inserted his penis into her mouth. She had trouble breathing. A 12-year old child intervened and removed the four-year old and took her to her parents. The four-year old victim was distressed. The defendant was arrested on the following day in a very intoxicated state.

The special hearing and the indication of a limiting term

1. As the defendant was found unfit to plead, the matter proceeded as a special hearing pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1900 (NSW) (the Forensic Provisions Act). On 6 November 2013, King DCJ was satisfied beyond reasonable doubt that the defendant had committed an offence contrary to s 66A(1) of the Crimes Act 1900 (NSW) in that he had had sexual intercourse with a child under the age of ten (who was in fact aged four years) (the index offence).
2. His Honour was satisfied that the defendant was significantly affected by alcohol at the time of the offence and described the circumstances of the offence as "somewhat bizarre". His Honour said of the defendant's risk of re-offending: "Considering his current ongoing mental health issues, it is extremely difficult to make an evaluation as to the likely rehabilitation of the offender, particularly where he has a significant alcohol problem that has already caused major physical damage to his intellectual abilities. Considering his lack of any similar offending in the past, and my conclusion that he was no doubt significantly affected by alcohol on the occasion of the offending, it might be said that in the absence of alcohol there would be a low prospect of re-offending. The difficulty is that with an individual such as Mr Brauer, who has a twenty year history of alcoholism, there can be little assurance that reform in relation to alcohol consumption will ever be achieved, particularly having regard to the effects that it has already had on him, and the Court must, apart from general and specific deterrence and rehabilitation, take into account the need for protection of the community."
3. On 5 December 2013, King DCJ indicated, pursuant to s 23 (1)(a) of the Forensic Provisions Act, that, had the special hearing proceeded as a normal trial and had the defendant been found guilty, he would have imposed a term of imprisonment of four and a half years. Accordingly, his Honour indicated a limiting term of four and a half years to commence on 2 January 2011, being the date on which the defendant was arrested and taken into custody. The limiting term is due to expire on 1 July 2015. His Honour referred the defendant to the Mental Health Review Tribunal (the Tribunal) pursuant to s 24(1)(a) of the Forensic Provisions Act 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 of the Forensic Provisions Act.

Reviews undertaken by the Tribunal

1. The Tribunal is obliged, by s 46 of the Forensic Provisions Act, to review the case of a forensic patient every 6 months but may review the case of any forensic patient at any time.
2. The Tribunal reviewed Mr Brauer on eight occasions: 26 June 2012, 13 December 2012, 20 June 2013, 12 December 2013, 17 July 2014, 2 October 2014, 5 February 2015 and 14 May 2015. Prior to the imposition of a limiting term, these reviews were conducted with a view to ascertaining whether the defendant was fit to be tried as well as determining what treatment and support were required.
3. At the first review on 26 June 2012, the Tribunal noted the defendant's long history of heavy alcohol use which was said to amount to one cask of wine a day. When he was unable to obtain wine, he was said to resort to methylated spirits. He suffered associated black-outs. At that time he was regarded as suffering from severe depressive illness and severe cognitive impairment.
4. Following the review on 17 July 2014 the Tribunal determined, pursuant to s 47(1) of the Forensic Provisions Act, that the defendant be detained in the Aged Care Rehabilitation Unit at Long Bay Hospital. The Tribunal's Determination dated 12 August 2014, noted: "It was apparent that Mr Brauer's immediate need was for the intensive psychiatric care, which was available and being provided where he is currently accommodated, with a view to discharge planning being undertaken when that became practicable."
5. The Tribunal reviewed the defendant on 2 October 2014 and reported, in its Determination of 16 October 2014, that he was improving on a new medication regime and that his "psychotic feature" had resolved. It also recorded: Current risk assessment for harm or endangerment to self or others In his current environment Mr Brauer does not represent a risk of danger to himself or others.
6. At the Tribunal's review of the defendant on 5 February 2015, the Tribunal considered the report of Dr Kheng Chan, a Psychiatric Registrar at Long Bay Hospital. Dr Chan recorded his opinion and recommendation with respect to the defendant's psychiatric issues as follows: "Mr Kingsford Brauer's depressive illness had significantly improved. He no longer suffers from persistent low mood or psychotic symptom. Mr Brauer suffers from alcohol related cognitive impairment which is progressive and is unlikely improve in near future. The treating team is of the opinion that Mr Brauer cease[d] to become a mentally ill person as defined under the New South Wales Mental Health Act 2007."
7. The Tribunal made a Determination dated 25 February 2015 following its review on 5 February 2015. There is an apparent inconsistency in its description of his circumstances. On the one hand it noted that he was diagnosed as being neither psychotic nor suffering from cognitive impairment; on the other hand, it recorded: "His cognitive impairment is progressive and unlikely to improve."
8. In the same Determination, the Tribunal noted as follows: "3. Current risk assessment for harm or endangerment to self or others: No risk assessment was proffered by his treating team. It is assumed to be low. 4. Any significant developments since the last review are summarised as follows: Once again, despite prior Tribunal requests, no progress has been made regarding accommodation for Mr Brauer on his release. As this is less than five months away, it is now Extremely Urgent. He has been assessed by ACAT as needing structured care in a low-level permanent residence. He is less depressed and more assertive than formerly. 5. Future plans in relation to care, treatment or control of the person: Mr Chan's view is that if accommodation can be found for Mr Brauer, no CTO would be needed. But if not, there would be concerns about supervision of his living, particularly regarding alcohol abuse. Dr Sim suggests that failing all else, he should be placed on a CTO in Department of Housing accommodation. 6. Any other matters that the Tribunal considers should be noted arising from this review: The Tribunal has NOT been provided with either of Brauer's ACAT assessment or his OT Function Report. He remains without an agreed residence or plan on discharge. This is extremely urgent as the discharge is in less than five months. An early review due to the expiring of his limiting term is essential."
9. Because of the Tribunal's concern as to the imminence of the expiry of the limiting term, it conducted a further review on 14 May 2015. The Tribunal recorded in its Determination dated 12 June 2015 that the defendant "is not mentally ill". Following the review on 14 May 2015 the Tribunal noted that on expiry of his limiting term on 1 July 2015, the defendant could move to the Bexley Care Centre, which is a nursing home with special facilities for residents who suffer from dementia. The availability of a bed at the Bexley Care Centre was confirmed by letter dated 30 April 2015.
10. The Tribunal's Determination following that review said: "3. Current risk assessment for harm or endangerment to self or others: On the one hand, Mr Brauer is a low risk to others because of his physical impairment. However, Dr Bhattacharyya [the defendant's treating psychiatrist] expressed serious concern that Mr Brauer NOT have any contact with children, to whom he would pose a risk."
11. The Tribunal listed the defendant's "relevant physical conditions" as: cognitive impairment, dementia, hypertension, chronic renal failure, anaemia, hearing impairment, osteoarthritis and benign prostate hypertrophy.
12. The Tribunal also noted the Aged Care Assessment Team (ACAT) had assessed him as needing low level respite care and that he was under the control of the Public Guardian regarding financial and medical issues.

The defendant's criminal history and other matters germane to risk of harm to others

1. The defendant's criminal history dates back to 1978. It includes convictions for driving with above the prescribed concentration of alcohol; assault (1990); assault female (1990); assault occasioning actual bodily harm (1993), malicious damage by fire (1993); malicious damage by fire with intent to cause bodily injury (1993); destroy and damage property (2000); behave in offensive manner in/near public place (2005 and 2008); common assault and larceny (2009).
2. The plaintiff relied on material to establish that the defendant was also charged with sexual intercourse without consent. This charge arose in the context of a domestic relationship. Although the complainant and her daughter made statements to the police, the Director of Public Prosecutions offered no evidence when the matter was brought on for hearing. In her statement of 3 March 1993 the defendant's then wife (who was at the time separated from him) deposed that she had been assaulted by the defendant on 1 February 2003 in the course of an argument. In the morning of 2 February 2003 she could not sleep and decided to get up and do a load of washing. As she was attending to this task, the defendant indicated that he wanted to have sexual intercourse with her. When she told him that she did not want to, he threatened her with a butcher's knife, following which she complied. That afternoon her daughter visited and saw that her mother was upset and had bruising to her face and head. The defendant's wife then told her daughter what had occurred; the narrative corresponded with that of her own statement. The daughter deposed: "While my mother was telling me this I saw that she was crying and very upset. My mother was afraid to go back to her home so she stayed with me for the next four nights."
3. A month later, the defendant bought some petrol and set it alight at his wife's home. He was convicted of the charge of malicious damage by fire with intent to cause bodily injury referred to above.

Expert opinion evidence as to the defendant's mental state

1. Dr Richard Furst, psychiatrist, prepared reports dated 19 April 2012 and 20 June 2013 which were considered by King DCJ at the special hearing. Dr Furst described the defendant in the following terms: "a 53-year-old divorced male with no dependents, living by himself in Inverell at the time of his arrest. He had been married for a short period in 1992, but at the time of the offence was in receipt of a Disability Support Pension as a result of chronic health problems. He had a history of previous work at a sawmill and abattoirs, for the local council, for the Forestry Department and various seasonal work such as fruit picking."
2. A report was prepared by Dr Hertz, a psychiatrist working for Justice Health, following an interview with the defendant on 5 June 2012. Dr Hertz also had available a neuropsychological assessment of the defendant. Dr Hertz opined: "Mr Brauer had alcohol-induced persisting dementia. His dementia is characterised by deficits in memory and executive function and slow processing speed. Mr Brauer has a history of alcohol dependence over at least a 20-year period. He has had extensive neuropsychological testing and his head CT scan shows cerebral atrophy."
3. A report of Dr Susan Pullman, neuropsychologist, dated 4 November 2011 was also considered by King DCJ. Dr Pullman opined: "Mr Brauer has extremely low intellectual function (second percentile). His speed of information processing was markedly impaired (well below the first percentile), his auditory memory was also extremely low. There was some evidence of frontal deficits. He also endorsed extremely severe levels of depressive stress and anxiety symptoms which could be contributing to his cognitive deficits."
4. Dr Pullman's assessment was that the defendant's intellectual capacity fell within the extremely low range. However, she considered the possibility that severe levels of depression, stress and anxiety may have masked his true cognitive abilities.
5. Dr Sue Morgans, Psychiatric Registrar, assessed the defendant on 10 July 2014. She found him to be "suspicious, confused, distracted, psychomotor retarded, psychomotor agitated"; "reluctant to enter the interview room"; "not able to answer most questions" and "not oriented in time, place or person." In her report dated 17 July 2014 (which was considered by the Tribunal at its review) Dr Morgans recorded: "Mr Brauer is described as having had a slow but progressive decline in mental state over the last six months. His memory has steadily declined with an associated increase in delusional beliefs. He is described as believing that staff are poisoning him and have given him AIDS. He has been noted to be engaging in bizarre behaviours such as eating cigarette butts and talking to himself."
6. Dr Morgans' diagnostic impression was that the defendant was suffering from psychotic depression.

Availability of other programs or facilities

1. The defendant was found to be ineligible for assistance from the Community Justice Program as he did not meet the requirements of the Ageing Disability and Home Care Intake Policy. The Intake Panel decided on 9 October 2013 that the defendant was not shown to have a significant developmental delay.
2. On 25 February 2015 the New South Wales Civil and Administrative Tribunal (NCAT) made a guardianship order in respect of the defendant and appointed the Public Guardian to be his guardian for a period of twelve months. The order provided that the Public Guardian's functions included the function to decide where the defendant may reside; what health care he may receive and to make substitute decisions about medical or dental treatment for the defendant. NCAT also ordered that his estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and that management of his estate be committed to the NSW Trustee and Guardian.

The jurisdiction to make an extension order

1. Part 5 of the Forensic Provisions Act, which deals with forensic and correctional patients, provides, by s 40, that the objects of the Act include to protect the safety of members of the public.
2. Section 54A of the Forensic Provisions Act provides for the extension of the status as a forensic patient of a person in accordance with Sch 1. Clause 3 of Sch 1 to the Forensic Provisions Act permits the Minister for Mental Health, as a Minister administering Part 5 of the Act, to apply to this Court for an extension order against a forensic patient.
3. The term "forensic patient" is defined in s 42 of the Forensic Provisions Act. It includes a person who is found unfit to be tried who is detained. Because the defendant was the subject of a limiting term and was detained in custody pursuant to an order made under s 24 of the Forensic Provisions Act, he is a forensic patient.
4. Section 53 of the Forensic Provisions Act provides: Classification as involuntary patient (1) The Tribunal may, on a review of the case of a forensic patient detained in a mental health facility, correctional centre or other place following a special hearing, classify the patient as an involuntary patient if the patient would, by virtue of the operation of this Act or any other law, cease to be a forensic patient within 6 months after the date of the review. (2) The Tribunal may order that a patient classified as an involuntary patient under this section be transferred from a correctional centre to a mental health facility. Note. A person classified as an involuntary patient ceases to be a forensic patient, see section 52 (2).
5. Section 54 of the Forensic Provisions Act provides: Release from mental health facility on ceasing to be a forensic patient A person who ceases to be a forensic patient (other than a person classified as an involuntary patient under section 53) must be discharged from the mental health facility in which the person is detained.
6. The Forensic Provisions Act confers power on this Court to make an extension order if the forensic patient is subject to a limiting term or an existing extension order: cll 1 and 4, Sch 1. The test for making an extension order is set out in cl 2 of Schedule 1, as follows: "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 which this Court must have regard in determining whether to make an extension order, in addition to any other matter it considers relevant: 1. the safety of the community, 2. the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient, 3. the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(b), 4. any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, 5. any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, 6. 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, 7. 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), 8. 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, 9. any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.
8. On the making of an extension order, the Court is neither required nor permitted to determine whether the order is one for detention of the individual or supervision within the community: it is for the Tribunal to determine these matters. Once an extension order has been made, it may be varied or revoked by the Court, on the application of either of the parties or on the recommendation of the Tribunal, under s 47(2A) of the Forensic Provisions Act: cl 12, Sch 1.

The procedure for applying for and making an extension order

1. An application for an extension order must be made within the last 6 months of a forensic patient's limiting term or of any existing extension order: cl 4(2), Sch 1.
2. The applicant for an extension order is required to furnish to the Court documentation that addresses, to the extent relevant, each of the matters referred to in cl 7(2) and a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the risk of the forensic patient causing serious harm to others, 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: cl 5, Sch 1.
3. Proceedings under Sch 1 are civil proceedings and are to be conducted in accordance with the law relating to civil proceedings (including the rules of evidence): cl 13, Sch 1.
4. The Act requires a preliminary hearing into the application within 28 days after the application is filed or within such further time as the Court allows: cl 6(4), Sch 1. If, following a preliminary hearing, the Court is satisfied that the matters alleged in the application would, if proved, justify the making of an extension order, the Court must appoint independent clinical experts to conduct examinations of the forensic patient and to furnish reports to the Court: cl 6(5), Sch 1. If not so satisfied, the Court must dismiss the application: cl 6(6).
5. Clause 10, Sch 1 provides that the Court may make an interim extension order of the defendant's status as a forensic patient if the limiting term will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.

Orders that may be made by the Tribunal in respect of forensic patients for release

1. Section 47 of the Forensic Provisions Act empowers the Tribunal, after reviewing the case of a forensic patient under s 46, to make an order, including an order for the patient's release, either conditionally or unconditionally. Leave of absence may also be granted pursuant to s 49, subject to safety considerations outlined in the section. Section 43 prohibits the Tribunal from making an order for release of a forensic patient unless it is satisfied that the safety of the patient or the public will not be endangered and: "other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care."
2. The Tribunal may, under s 75 of the Forensic Provisions Act, impose a range of conditions as part of a conditional release order, including the appointment of a case manager, care and treatment, medication, accommodation, non-use of alcohol, drug testing, agreements as to conduct, prohibitions or restrictions on visiting certain places or associating with certain people.
3. Section 74 of the Forensic Provisions Act requires the Tribunal to have regard to certain matters when determining what order to make about a person, which include: whether the person is suffering from a mental illness or other mental condition; whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm; the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration; and a report of a forensic psychiatrist.

Involuntary detention and treatment in a mental health facility under the Mental Health Act 2007 (NSW)

1. Part 2 of the Mental Health Act provides for involuntary detention and treatment of patients in mental health facilities. An involuntary patient is defined as: (a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or (b) a forensic patient who is re-classified as an involuntary patient under section 53 of the Mental Health (Forensic Provisions) Act 1990, or (c) a correctional patient who is re-classified as an involuntary patient under section 65 of the Mental Health (Forensic Provisions) Act 1990.
2. For present purposes it is sufficient to refer to the provisions that require that, before a person becomes an involuntary patient, he or she must be a "mentally ill person" or a "mentally disordered person". For a person to be "mentally ill" the person must be suffering from "mental illness". The term "mental illness" is defined in s 4 of the Mental Health Act to mean: a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

Community treatment orders under the Mental Health Act

1. The Mental Health Act makes provision for community treatment orders in respect of "affected persons". Such orders authorize compulsory treatment of persons in the community. Section 53(4) provides that the Tribunal may not make a community treatment order unless it is of the opinion that the person is a "mentally ill person".

Relevant provisions under the Guardianship Act 1987

1. Section 4 of the Guardianship Act provides in part that "it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles": 1. The welfare and interests of such persons should be given paramount consideration: s 4(a); 2. The freedom of decision and freedom of action of such persons should be restricted as little as possible: s 4(b); and 3. Such persons should be encouraged, as far as possible, to live a normal life in the community.
2. Part 5 of the Guardianship Act governs the provision of medical and dental treatment. Section 36 authorises a responsible person, including a guardian (or the Tribunal), to provide consent to the carrying out of medical treatment (minor and major). If a patient objects to the carrying out of medical treatment, the consent of the guardian has no effect (s 46(2)(a)) unless the patient has minimal or no understanding of what the treatment entails and the treatment will cause the patient no distress or reasonable tolerable and transitory distress (s 46(4). The patient's objection may also be overridden if the Tribunal has conferred on the guardian a power to override (s 46A(1)), such power being conferred only if the Tribunal is satisfied that the objection will be made by the patient because of a lack of understanding as to the nature of, or reason for, the treatment (s 46A(2)).
3. Section 11 of the Guardianship Act authorises the Tribunal, if it considers it to be appropriate in the circumstances of the case, to make an order for the "removal of the person from any premises" by an authorised officer or member of the police force, using reasonable force if necessary. Section 12 permits a police officer to apply to an authorised officer under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) for a warrant to enter and remove a person "who appears to be in need of a guardian" from premises if it is believed on reasonable grounds that a person "who appears to be in need of a guardian" is being unlawfully detained or is likely to suffer serious damage: s 12(1).

Relevant authorities

1. I was referred to decisions of this Court in which the Forensic Provisions Act was considered. It was accepted that some guidance could be obtained from decisions under the Forensic Provisions Act. Judicial consideration of the Crimes (High Risk Offenders) Act 2006 (NSW) (the High Risk Offenders Act) is of particular relevance where the same, or similar, wording is used: see, for example: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 by Davies J at [12].
2. Guidance as to the meaning of "high degree of probability" under the Forensic Provisions Act can, accordingly, be obtained from a consideration of its meaning in the High Risk Offenders Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 (a decision under the High Risk Offenders Act), the Court of Appeal (Mason P, Giles and Hodgson JJA) said at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not', so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt ..."
3. The question whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order" also arises under the High Risk Offenders Act. The Court of Appeal in Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119; 70 NSWLR 448, said of similar wording in the High Risk Offenders Act at [98]: "In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3) [of the High Risk Offenders Act]. That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation." [Emphasis added.]
4. The phrase "unacceptable risk" is not defined in the Forensic Provisions Act. However, it is a common expression in Bail Acts: see Div 2 of Part 3, Bail Act 2013 (NSW); s 4(2)(d) Bail Act 1977 (Vic); s 6(1)(a) Bail Act 1980 (Qld). It is clear from the express terms of cl 2(1)(a) in the Forensic Provisions Act that the unacceptable risk is that of "causing serious harm to others".
5. Two approaches to the construction and application of the expression "unacceptable risk" in the Forensic Provisions Act have been applied in decisions of this Court: 1. the 'everyday meaning approach' adopted by R A Hulme J in State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [20] and State of New South Wales v Thomas (Final) [2011] NSWSC 308 at [28]; and 2. the 'balancing exercise approach' adopted by Davies J in State of New South Wales v Richardson (No 2) (2011) 210 A Crim R 220 at [90].
6. The everyday meaning approach regards the test of unacceptable risk under the High Risk Offender Act as being satisfied if there is a risk that the person will commit a serious sex or violence offence (as the case may be) which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made. On the balancing exercise approach, the test for "unacceptable risk" involves a balancing exercise of first, the likelihood of committing a further serious offence; second, the gravity of such an offence; and third, the consequences of an order on the offender. As it was not suggested by either party that the determination of the current application turned on which test was applied, I do not regard it to be necessary to decide which test is to be preferred, unless I consider that one test would provide a different result than the other.
7. Moreover, it does not appear to me to be appropriate to undertake a balancing exercise at a preliminary hearing in any event, having regard to the wording of cl 10, Sch 1 and what was said by the Court of Appeal in State of NSW v Tillman (set out above) as to the relevant threshold at a preliminary hearing.

Consideration

1. As referred to above, an interim extension order can be made following a preliminary hearing if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. In other words, before I can make an interim extension order I must be satisfied that the supporting documentation is capable of satisfying the Court (at a final hearing) to a "high degree of probability" of the following two matters: 1. that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and 2. that the risk cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under s 53 of the Forensic Provisions Act).
2. I propose to address such matters in s 7(2) as are relevant for the purpose of considering whether I am satisfied that the supporting documentation is capable of establishing that there is a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient and that the risk cannot be managed by less restrictive means.

Report received from Ms Howell (s 7(2)(c))

1. In support of its application the plaintiff relied on a report dated 22 June 2015 by Ms Howell, a qualified psychologist, in which she assessed the risk of the defendant causing serious harm to others and how the risk can be managed. Ms Howell opined that there was a moderate-high risk of sexual recidivism against either a young child or an adult female. She considered that his capacity to "groom" a victim was limited and that any such assault would be likely to be impulsive and opportunistic. His risk of recidivism would be increased were he to ingest alcohol or fail to comply with his medication.
2. Ms Howell did not consider that the risk could be managed by less restrictive means than an extension order. She assessed the Bexley Care Centre and reported that the staff, although experienced with dealing with patients who had dementia, had very limited experience with prior sex offenders. Although there were mechanisms designed to prevent demented patients from wandering, the systems were not secure and did not prevent patients from exploring the grounds and coming into contact with other residents or visitors to the Centre. She did not consider there to be adequate safeguards in place at the Centre to prevent his ingesting alcohol.
3. Ms Howell said (at page 24 of her report): "It is my view that if the Bexley Care Centre provided their staff with training in relation to working with and managing the risk of sexual offenders in conjunction with upgrading security, they have the potential to safely manage Mr Brauer on a day to day basis. However, if Mr Brauer was determined to leave the centre at some time in the future and consume alcohol his risk of sexually re-offending would significantly increase. Without the certainty that Mr Brauer can be safely managed at the Bexley Care Centre, it is my view that Mr Brauer would require ongoing management as a forensic patient."

Any other report from a qualified psychiatrist or psychologist: cl 7(2)(d)

1. The reports that were considered by King DCJ in nominating a limiting term and those that were considered by the Tribunal in its periodic reviews of the defendant have been addressed above. It is apparent that none of the authors of those reports purported to carry out a risk assessment in respect of the defendant. In so far as his risk was assessed as "low" it was either assumed to be so, or adjudged in the context of the highly structured, controlled and monitored custodial environment of the prison hospital where all residents were male, all staff members adult, the defendant had no access to alcohol and his medication was administered by staff.
2. The defendant's treating psychiatrist, Dr Bhattacharyya, expressed substantial concern that he not have any contact with children, to whom he would pose a risk.
3. It was common ground that the defendant's alcohol-related dementia tended to deprive him of insight and the capacity to control his impulses. Although Ms Kluss, who appeared on behalf of the defendant, submitted that medication and abstinence from alcohol had improved his condition, I am not persuaded that these matters were made out on the evidence or that they ameliorated the risk. That he was required to be abstinent while a forensic patient does not indicate that he would be able to be abstinent if alcohol were available. Although his depression and psychotic disturbance appear to have been cured by medication, it cannot reasonably be inferred that these conditions would not recur if he was no longer compliant with medication or if he started to drink again.
4. If the defendant were no longer a forensic patient, he would be unrestrained by the controls presently in place. He would have access to adult females who were not staff members as well as children, who could not be expected to have the skills to deal with, or defend themselves against, his impulsive approaches or assaults. It was not suggested that any assault on an adult female or on a child would not amount to "serious harm" within the meaning of cl 2(1)(a).

Any report of the Tribunal, being an agency responsible for the detention, care or treatment of the forensic patient: cl 7(2)(f)

1. The Determinations made by the Tribunal in respect of the defendant from time to time have been referred to above. I do not regard the reasons for these Determinations as indicating that the Tribunal undertook any real assessment of the risk posed by the defendant upon release. The Tribunal was concerned that accommodation needed to be found for him and that he might resort to alcohol upon release. However it was not required to, and did not, address the question that I am required to determine under Sch 1. The Tribunal understandably regarded Bexley Care Centre as being more appropriate than Department of Housing Accommodation and a Community Treatment Order.
2. It is also of significance that the Tribunal appears to be firmly of the view that the defendant could not and cannot be made an involuntary patient within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW) because he is not a "mentally ill person" in that he is not suffering from a "mental illness". Although it is not articulated, it appears that the reason for this view is that, although the defendant is suffering from cognitive impairment arising from alcohol-related dementia, it may be that he does not meet the definition in the Mental Health Act because he no longer suffers from delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behavior indicating the presence of any of these matters.

The level of the defendant's compliance with any obligations to which he has been subject while a forensic patient: cl 7(2)(g)

1. Because of the strict custodial conditions in which the defendant has been incarcerated for the last four and a half years, it is difficult to draw anything from his "compliance" since he was substantially deprived of choice (whether to take medication; whether to drink alcohol).

The views of the Court that imposed the limiting term on the defendant at the time it was imposed: cl 7(2)(h)

1. It is evident from the extracts from the reasons of King DCJ set out above that his Honour adjudged the risk of recidivism to be relatively high and considered that it could not be readily controlled outside custody because of the defendant's cognitive impairment, with its associated lack of insight and compromised capacity to control his impulses. His Honour doubted that the defendant would be able to abstain from consumption of alcohol and considered, in those circumstances, that the prospect of re-offending could not be regarded as low.

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others: cl 7(2)(i)

1. The defendant's criminal history is significant because it shows that the index offence was not an isolated impulsive act but can be seen as a further instance of unprovoked aggressive, sexual conduct against a vulnerable person. I have also taken into account the statements by the defendant's ex-wife and her daughter as to the sexual assault in February 1993. Although this charge was not proceeded with because the complainant was not prepared to give evidence, the statements can be taken into account on the question of risk, since the Forensic Provisions Act does not limit the assessment of safety to conduct that has resulted in a criminal conviction.

Other matters

1. Ms Kluss submitted that if an interim extension order is made, the defendant may well lose the opportunity to reside at the Bexley Care Centre because the bed will not continue to be made available to him. She contended that this militated against the granting of an interim extension order. For reasons given above, I do not consider the exercise of balancing the risk of serious harm to others against the interests of the defendant to be germane at a preliminary hearing (even if it were the applicable test at a final hearing). However, in any event, I do not consider that this submission ought be accepted. It is by no means inevitable that the defendant will lose the opportunity, since it is possible that the Tribunal, following a further review of the defendant, may make a conditional release order, entitling him to reside at the Centre, subject to such conditions as the Tribunal sees fit to impose (which may include abstinence from alcohol, compliance with medication, not approaching children and so on).

Conclusion as to whether the matters in the supporting documentation would, if proved, be capable of establishing unacceptable risk to the requisite standard

1. On the basis of the matters referred to above I am satisfied that the matters alleged in the supporting documentation referred to above would, if proved, establish to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. His lack of insight, lack of impulse control and past conduct indicate that the risk of his assaulting, including sexually assaulting, another person is high unless he is living in highly regulated and controlled circumstances. This is sufficient for the 'everyday meaning approach'. If the 'balancing exercise approach' is required, it is necessary to have regard to the likelihood of the defendant's causing serious harm to others; the gravity of such conduct and the consequences of the order on the defendant. In so far as the defendant has a right to be at liberty, I do not consider that this outweighs the harm he poses to others if he is at liberty. He has little, if any, capacity to moderate his conduct or impulses, to resist the urge to ingest alcohol if it is available or to resist the sexual urge if it arises and circumstances present him with the opportunity to satisfy it. Indeed, such is his compromised state, I do not consider that it can be regarded as being in his interests to be at liberty at all, unless the "liberty", such as it is, is strictly controlled.

"Less restrictive" means available to manage the risk posed by the defendant

1. Ms Kluss submitted that there were at least four mechanisms by which any risk posed by the defendant, even if found to be unacceptable, could be adequately managed by other less restrictive means than an extension order. They were: 1. the procedure under the Mental Health Act whereby the defendant could be detained and treated as an involuntary patient; 2. the procedure under the Mental Health Act whereby a community treatment order could be made in respect of the defendant; 3. the protection afforded by the Public Guardian with respect to the defendant, having regard to the guardianship order made in respect of him. Ms Kluss referred to "coercive powers" being available to the Public Guardian, although she was unable to refer me to any specific provision of the Guardianship Act to make good the submission; and 4. the controls in place at Bexley Care Centre for managing residents with dementia in a secure, supervised and controlled environment.
2. It was not disputed that the defendant did not qualify for the Community Justice Program (which provides ongoing management of persons with an intellectual disability). Accordingly, Ms Kluss did not contend that it qualified as a "less restrictive means" for managing the risk posed by the defendant.
3. Ms Wright submitted on behalf of the plaintiff that it was pure speculation whether the defendant would ever be treated as an involuntary patient and, indeed, she contended that such evidence as there was indicated that the Tribunal considered that avenue to be unavailable in respect of the plaintiff because he was not a "mentally ill person". The same consideration applied to the availability of a community treatment order since such an order cannot be made unless the Tribunal is of the opinion that the person is a "mentally ill person".
4. Ms Wright submitted that the Public Guardian had neither the resources nor the interest in supervising the defendant for the protection of the public since the role of the Public Guardian was to act in the interests of the defendant rather than in the interests of public safety. Moreover the role did not extend to supervision on a constant basis but was largely confined to making of decisions which could then be implemented by others in respect of the person the subject of an order. For example, while the Public Guardian could decide that the defendant was to live at Bexley Care Centre, it could not ensure that he remain within its bounds or prevent his drinking alcohol while on the premises.
5. Ms Wright also contended that the Bexley Care Centre could not amount to "means" within the meaning of cl 2(1)(b), Sch 1 because it was, in substance, "care". She submitted that Parliament ought to be taken to have used the word "means" advisedly to mean something other than "care", which was a word used elsewhere in the Forensic Provisions Act to connote the circumstances in which care was provided to a person. Ms Wright referred me to s 43 of the Forensic Provisions Act which provides that the Tribunal must not make an order releasing a forensic patient unless it is satisfied that other "care" of a less restrictive kind is appropriate and reasonably available or that the patient does not require "care". Ms Wright submitted that the adequacy of present or future arrangements at Bexley Care Centre is not relevant to the statutory test because it does not constitute a "means" of managing the risk he poses. She contended that the term "manage[ment] by other less restrictive means" refers to a legal framework, not a factual circumstance. Ms Wright submitted that, had Parliament intended to refer to facilities such as Bexley Care Centre in this context it would have referred to "care" rather than "means" and "manage[ment]".

Conclusion as to means postulated for managing the risk

1. I accept the plaintiff's submission that the risk cannot be adequately managed by the possibility (which I accept to be speculative) that the defendant would be classified as an involuntary patient under the Mental Health Act. There is a distinction between the risk posed by the defendant as a result of his alcohol-related dementia and cognitive impairment on the one hand and his classification as a "mentally ill person" under the Mental Health Act on the other. It does not appear that he meets the definition in the latter, although the risks posed by his conditions are substantial.
2. Moreover, there is no prospect that the Tribunal will move to exercise its power under s 53 of the Forensic Provisions Act to classify the defendant as an involuntary patient, since if it was going to do so, it would have done so by now, having regard to its obligation to release a forensic patient who is not classified as an involuntary patient at the conclusion of the limiting term.
3. I have been unable to identify in the Guardianship Act any coercive provision which could be regarded as adequate to manage the risk. The provisions pertaining to medical treatment would only permit the Public Guardian to consent to treatment. The Public Guardian's power to override the objection of the person to certain treatment is limited by the provisions of the Guardianship Act as referred to above. In the circumstances of the present case, s 11 of the Guardianship Act would appear to permit police to remove the defendant from the Bexley Care Centre only if an order is made by the Tribunal. Section 12 of the Guardianship Act does not appear to be relevant to the present application.
4. I accept that there is some force in the distinction sought to be drawn by Ms Wright between "means" on the one hand and "care" on the other. It is a fundamental principle of interpretation that all words are to be accorded meaning and effect. This means that where a word appears more than once in a document or statute it is to be given a consistent interpretation and where a different word is used it is not to be construed as if it were synonymous with another word used in the same document or statute: see, for example, Gardner v Regina [2003] NSWCCA 199 at [43], citing Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25 at 30; see also Pearce & Geddes, Statutory Interpretation in Australia, 8th edition, paragraph [4.6]. Accordingly, I would assume that "means" means something other than "care". However, I do not consider it to be necessary to address the distinction between these words or the light that such distinction might shed on the construction of cl 2(1)(b), Sch 1 for the purposes of this preliminary hearing.
5. In any event, I am satisfied that the matters alleged in the supporting documentation are capable of establishing to a high degree of probability that the risk cannot, without more, be adequately managed by the defendant living in Bexley Care Centre. The evidence discloses that Bexley Care Centre is a nursing home with special facilities for those, such as the defendant, with dementia. However, residents can move around within the precincts and visitors can come to the Centre. It is reasonable to expect that at least some of the residents will be vulnerable females in respect of whom the defendant may seek to satisfy his sexual urges and that at least some of the visitors will either fall into that category, or be children.
6. This is not to say that the Bexley Care Centre is, of itself, inappropriate as the defendant's residence. Indeed it may be that the Tribunal, as a result of the defendant's remaining a forensic patient as a result of the interim extension order, might order that he be conditionally released to reside there. However, unless there are coercive powers to manage his risk (and there do not appear to be any unless an extension order is made), the unacceptable risk he poses cannot be adequately managed if the matters alleged in the supporting documentation are proved.

Conclusion

1. In my view the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I am persuaded that it is appropriate, in these circumstances, to make an interim extension order for the maximum period allowed of 28 days. It may be necessary for this to be extended since the reports from a qualified psychiatrist and psychologist are unlikely to be available before the expiry of that period.
2. I emphasise that this is but 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 (which will include the reports which I have ordered be prepared and furnished to the Court) and more developed submissions.
3. In light of the view to which I have come, I am obliged by cl 6, Sch 1 to appoint two qualified professionals to conduct examinations of the defendant and furnish reports to the Court on the results of those examinations and to direct the defendant to attend such examinations. It is common ground that it is appropriate that a qualified psychiatrist and a registered psychologist be appointed, although agreement has not been reached as to the identity of such persons.

Timing of the application

1. The summons in this matter was filed in Court on 24 June 2015. The preliminary hearing was listed before me as Duty Judge on 30 June 2015. The Forensic Provisions Act required a decision whether an interim extension order ought be granted to be made before midnight on 30 June 2015. In support of the application, the plaintiff relied on evidence spanning several decades which included experts' reports, a criminal history, statements to police, reviews by the Tribunal and policy documents.
2. The plaintiff has known from 5 December 2013 that the limiting term would expire on 30 June 2015 and that any application for an interim extension order would have to be made by that date. No explanation was given by the plaintiff was to why the application was not made earlier. Although the defendant's psychiatric condition changed from time to time during the limiting term, his alcohol-related dementia and cognitive impairment, which remained intractable, coupled with his criminal history, were what gave rise to the risk.
3. The decision whether to make an interim extension order is a serious one. It almost inevitably results in the continued detention of a person who would otherwise be entitled to be at liberty. The material in support of the application is often, as in the present case, relatively voluminous and may require careful reading and consideration in order to appreciate its gravamen.
4. It is regrettable that the Minister did not see fit to allow me more time to make such a serious decision. Such extraordinary delay is hardly consistent with what might be expected from the plaintiff as a model litigant. Nonetheless I do not suggest that my decision was not fully considered. I read all the material tendered. I was ably assisted by counsel at the hearing.

Orders

1. The orders I made on 30 June 2015 were:
2. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ('the Act'): a. The Court appoints one qualified psychiatrist (the identity of whom is to be agreed between the parties) and one registered psychologist (the identity of whom is to be agreed between the parties) to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations to the Court, such reports to be furnished to the Court on or before 17 August 2015 or such further time as I may allow; and b. The Defendant is directed to attend those examinations.
3. Pursuant to clause 10 of Schedule 1 of the Act, the Court makes an interim extension order in respect of the Defendant for a period of 28 days from 1 July 2015.
4. Stand the proceedings over to 9:30 am on 21 July 2015 before me to hear any application to extend the interim extension order referred to in order 2 above.

Amendments 03 July 2015 - Removed duplicate coversheet table. 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: 03 July 2015