NSW Minister for Mental Health v Paciocco

Supreme Court of NSW|2023-02-22|Before: Rothman J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/370268

JUDGMENT

HIS HONOUR: The NSW Minister for Mental Health (hereinafter "the Minister" or "the plaintiff"), by Summons filed on 7 December 2022, seeks both final and interim orders extending the defendant, Steven Paciocco's status as a forensic patient. Ancillary orders are sought seeking the appointment of two qualified psychiatrists, psychologists, or mental health practitioners (or any combination of same) to examine the defendant.
Interim relief is sought pursuant to the provisions of ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (hereinafter "the Act") and final relief pursuant to the terms of ss 121, 127 and 128 of the Act. The Court, in these proceedings and as presently constituted is dealing only with the interim relief and the ancillary orders associated therewith. The defendant does not, solely for the purpose of this preliminary hearing, oppose the making of an interim order. Nor does the defendant oppose the making of the ancillary relief.

The Index Offences

At the time of the index offending, the defendant was living in Department of Housing accommodation in Annandale. He was receiving a Disability Support Pension and was said to have ongoing support from his mother.
On 20 April 2014, the defendant was at the intersection of Pyrmont Bridge Road and Parramatta Road in Camperdown, when he pulled a Swiss Army knife on two strangers who were waiting for a taxi. He stabbed the female victim and chased the male victim down the road. Both of the victims fled into the nearby 7-11 store. When police attended, he tried to strike one of the officers with his crutches.
The defendant was subsequently charged with one count of reckless wounding and one count of assaulting a police officer in the execution of duty. The defendant admitted to indulging in drugs and alcohol in the days prior to the offending, and also overdosing on clozapine in the night before the offence occurred.

Procedural History

On 20 April 2015, the defendant was found to be unfit to plead or stand trial by Flannery DCJ. This finding was based upon the defendant's schizophrenia and substance abuse disorders. The defendant was detained pursuant to the provisions of s 14 of the Act or its predecessor. On 23 October 2015, the Mental Health Review Tribunal (hereinafter "the Tribunal") found that the defendant remained unfit.
On 20 July 2015, the defendant was found guilty by Jeffreys DCJ in a special hearing. On 8 September 2016, Jeffreys DCJ sentenced the defendant by nominating a limiting term of two years and six months, which expired on 19 October 2016.
Since 19 October 2016, the Court has issued three extension orders. The first Extension Order proceedings were the subject of an Interim Extension Order issued by Beech-Jones J on 18 October 2016 and an Extension Order issued by Campbell J on 16 January 2017, which expired on 18 March 2018.
The second Extension Order proceedings were the subject of an initial Motion on notice for extension of the defendant's status as a forensic patient. That Motion was dismissed by Fullerton J on 8 March 2018 without dealing with the merits. On 15 March 2018, Latham J issued an Interim Extension Order and on 13 June 2018; Davies J issued an Extension Order which expired on 13 December 2019.
A third Extension Order was the subject of proceedings in which an Interim Extension Order was granted by Fullerton J on 29 November 2019 and the Extension Order was issued by Beech-Jones J on 3 March 2020 and expires on 12 March 2023.
On 10 February 2023, Ilkay Antepüzümü (a Guardian ad Litem) was appointed to act as the defendant's tutor in this litigation.

Evidence and Submissions

The plaintiff relies on two Affidavits of Melinda Smith, affirmed 14 December 2022 and 16 February 2023. Each Affidavit exhibits significant documentation, and the exhibits were marked as exhibits in the proceeding, being Exhibit MS-1 (volumes one and two respectively) and Exhibit MS-2. The documents in the two Exhibits are extensive.
In part at least, the volume of material is a result of the circumstance that the defendant has undergone many psychiatric reviews for these and other proceedings, the prior Extension Order proceedings and as a result of the decisions of the Tribunal. The material also includes records relating to the defendant's prior offending and the index offences. In the plaintiff's submission, the plaintiff has provided three aide memoires: Annexure A, a Chronology of Key Events; Annexure B, a Summary of Relevant Reports; and, Annexure C, a Summary of Mental Health Review Tribunal Proceedings.
The Minister relies on a Risk Assessment Report authored by Dr Gordon Elliott, dated 22 August 2022 to which there is a Supplementary Report of 24 October 2022, dealing with some short issues that were otherwise not covered in the original Report. The Risk Assessment Report (which here includes the Supplementary Report) were commissioned by the plaintiff for the purposes of this application. The Report helpfully summarises the content of the prior psychiatric Reports and documents on file and comments on them.
In the Report, Dr Elliott summarised the circumstances of the index offences and confirmed that there was evidence that the defendant had informed his mother that he wanted to kill someone that morning. Dr Elliott also noted that the plaintiff had made inculpatory statements to Police following the offending and indicated to them that he had attacked the victim for apparently racially motivated reasons (making a statement to the effect that the defendant had stabbed the female victim because she was Asian and "shouldn't be going out with a White guy").
Dr Elliott summarised the common themes in the psychiatric material available to him, which included chronic persecutory delusions relating to the defendant's neighbours, grandiose delusions, and anti-social behaviour. Dr Elliott noted that a Neuropsychological Report prepared by Ms Courtney Hitzeman found that the defendant's intellectual functioning was in the borderline range.
Dr Elliott also conferred with the defendant's treating psychiatrist, Dr Robert Reznick. Dr Elliott reported the view of Dr Reznick conveyed to Dr Elliott that Dr Reznick thought the defendant's current presentation was dominated by maladaptive personality traits of an antisocial, borderline, narcissistic, and paranoid type. Dr Reznick cast doubt on the emphasis placed on the diagnosis of schizophrenia and downplayed the role of psychotic symptoms in the defendant's current presentation. Dr Reznick noted that the defendant had attacked him only that very morning on 9 August 2022.
On assessment and examination, Dr Elliott found the defendant to be a poor historian who controlled the interview and did not tolerate questioning. Dr Elliott noted that the defendant would only give brief replies to questioning, if any, and preferred to speak in disconnected and thought-disordered strings of remarks.
Dr Elliott noted that the defendant's demeanour changed as soon as the nurse was persuaded to leave the room. At that point, the defendant became more direct, sarcastic and hostile. Dr Elliott expressed the view that the thought-disordered comments made by the defendant may have been partly deliberate, in order to control the interview. The defendant ended the interview with Dr Elliott early.
Dr Elliott agreed that the most consistent diagnosis for the defendant is chronic schizophrenia, which is permanent and lifelong, as well as previous depressive symptoms. The differential diagnosis is schizoaffective disorder.
Dr Elliott noted that despite having been in a forensic setting for some years and receiving medication, the defendant continued to reference his signature delusions and remained thought-disordered. On the issue of a personality disorder, Dr Elliott noted that while it was unusual to diagnose a personality disorder in the context of a chronic psychotic illness, there was evidence that the defendant employed aggression in circumstances where his needs were not being met, rather than as a result of ongoing psychosis. Dr Elliott thought this was consistent with the defendant using thought-disordered remarks to avoid direct questioning during the interview.
Dr Elliott expressed concern about the defendant's recalcitrance on the issue of discharge. The defendant said, which was a reiteration of comments made over many years, that he would reoffend if returned to the community. He demonstrated determined resistance to conditional release.
Overall, Dr Elliott's assessment of the risk of the defendant reoffending was consistent with prior Reports. In Dr Elliott's view, the risk of the defendant reoffending was high. Dr Elliott cited a high load of both clinical and historical risk factors present on the HCR-20V3 assessment. On this assessment, the defendant was classified in the "high-risk category". Dr Elliott noted that there was a risk that, if the defendant were in the community, he would have access to alcohol and drugs, which would further increase the defendant's risk of violent recidivism.
Dr Elliott expressed the view that the defendant's risk was best managed by maintaining his status as a forensic patient. Dr Elliott stated that this would ensure oversight by the Tribunal. Dr Elliott also expressed the view that classification as an involuntary patient under the Mental Health Act would not be an appropriate alternative, given that the Tribunal's oversight would be lost and decisions would fall to individual clinicians who will have or may have varying approaches. Further, Dr Elliott did not recommend a Community Treatment Order ("CTO") or a Guardianship Order for the defendant.
Consistent with the opinions summarised above, Dr Elliott confirmed in his Supplementary Report that, in terms of managing the defendant, there was no less restrictive means of managing the risk posed by him other than the forensic patient pathway. Dr Elliott expressed the view that an NDIS plan would not safely manage the defendant either as an in-patient or community patient, given the expression of views by Dr Elliott in the first Report. Dr Elliott expressed the view that a 5-year Extension Order was warranted, given that the defendant's presentation has had very little change in the last six years.
As a matter of completeness, and notwithstanding that the Risk Assessment Report of Dr Elliott summarises the other psychiatric Reports, the Court should mention that Dr Elliott, together with other psychiatrists each of whose Reports the Court has read, portrays the defendant as suffering treatment-resistant schizophrenia and expresses the opinion, both in the Risk Assessment Report and in the Supplementary Report, that the defendant's presentation and condition has changed very little in the last six to eight years. The material before the Court discloses a continuing antisocial attitude and continuing resort to violence.
For example, when his then treating physician, Dr Reznick, informed the defendant of proposed changes in medication for the purpose of targeting irritability and aggression, the defendant "started to swing" at the psychiatrist and pursued him. The defendant was held back by an assistant holding onto the defendant's wheelchair at which the defendant punched nursing staff in the stomach.
On 1 December 2022, there was a hearing before the Tribunal as a result of which the Tribunal, having reviewed the defendant under s 78 of the Act, ordered that there be no changes to the Order that had been in place. It is appropriate to extract some of the comments in the Tribunal decision, which states: "[23] The report notes that the treating team are still working to optimise his medication regime while continuing to provide psychosocial rehabilitation for Mr Paciocco. The team opine that Mr Paciocco would not tolerate transfer to a less supporting environment at this time."
For the purpose of that review by the Tribunal a Report was compiled, which was before the Tribunal. The Report was compiled on 21 November 2022 and authored by Dr Ola Kansou (Forensic Psychiatry Registrar) and Dr Robert Reznick (Forensic Psychiatrist). In the course of the Report there are a number of incidents to which reference is made relating to displays of aggression by the defendant including assaults, aggression, abuse, attempts at assault, verbal abuse, delusions as to attempts to alter the defendant's medication, intimidation, rudeness and multiple occasions of verbal abuse. The defendant threw chairs albeit, it seems, not directed at the staff.
The Report, which I reiterate was authored, at least in part, by the defendant's treating psychiatrist, makes clear that the defendant continued to demonstrate residual positive symptoms of psychosis. These symptoms had led to behaviour instability over the preceding six months.
The defendant had also demonstrated a superficial insight into his illness and the link between his illness symptoms and past violent behaviour. The limited insight along with the defendant's borderline intellectual functioning was described as further creating "a barrier to engaging in rehabilitation and leads to [the defendant] demonstrating significant impulsiveness". Concerns were expressed as to the efficaciousness of treatment and the need for a "secure, structured environment" for the purpose of risk mitigation.
Dr Reznick expresses the view that: "In a less controlled environment, there would be a significant risk of deterioration in [the defendant's] mental state secondary to stress, lack of supports and possible substance use, which may lead to a heightened risk of violence."

Legal Principles

The scheme of the Act is not dissimilar to the scheme embodied in the High Risk Offender legislation and, by s 130 of the Act grants the Court jurisdiction to make an Interim Extension Order in circumstances where the forensic patient is under a limiting term or Existing Extension Order that will expire before the proceedings are determined finally, where the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. An Interim Extension Order may subsist for a maximum period not exceeding three months under the provisions of s 131 of the Act.
As a consequence of the provisions of s 130 of the Act, the Court, in dealing with an application for an Interim Extension Order, is referred, assuming it is satisfied that the final Order could not be made before the expiry of the current extension order, to the provisions of s 127. Section 127 of the Act allows the Court to determine an application by either making the Order or dismissing it. By the terms of s 127(2) the Court is required to have regard to a number of criteria, which criteria are not exhaustive. Those criteria are: 1. The safety of the community; 2. Reports received from persons appointed under s 126(5) to conduct examinations of the forensic patient; 3. The report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(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 patients; 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 Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice, 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 the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act); 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; and 9. Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.
It is unnecessary to deal with the terms of ss 128 and 129 for the purpose of the determination of whether an Interim Extension Order should be made.
At this juncture it is appropriate to note that the plaintiff, the Minister, is the Minister administering the Act and is the person who, under the provisions of s 123 of the Act, is to apply for an Extension Order against a forensic patient.
As is clear from the foregoing, the defendant is currently subject to an existing Extension Order which expires on 12 March 2023 and the Summons, as already stated, was filed on 7 December 2022. As already summarised, Reports were included in the application for an Extension Order that address the ongoing management of the patient as a forensic patient and the reasons why the risk that the defendant would cause serious harm to others cannot be adequately managed by other less restrictive means. As a consequence, the provisions of ss 124 and 125 of the Act have been satisfied.
As already noted, for purposes limited to the interim application and extension, the defendant does not oppose the Court issuing an interim extension order. Notwithstanding the agreement of the defendant, it is still necessary for the Court to satisfy itself that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. The Court also notes, because of the replacement of the statute under which the defendant was originally classified as a forensic patient, that, under cl 9 of Sch 2 of the Act, a person who immediately before the commencement of Pt 5 of the Act, was a forensic patient, is taken to be a forensic patient within the meaning of the Act.
As earlier stated, the Minister bears the onus of satisfying the Court of the two limbs required for the making of an Extension Order. The two limbs are those prescribed by the terms of s 122(1) of the Act and, as earlier stated, bear comparison with the regime promulgated in relation to high risk offenders. The two limbs, of which the Court is required to be satisfied to a high degree of probability, are that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient; and, the risk cannot be adequately managed by other less restrictive means.
In the earlier summary of the Risk Assessment Report, these issues were the subject of comment. I accept the opinion, for present purposes, of Dr Elliott and make clear that the facts raised, if proved, including the professional opinions, disclose a significant risk of the commission of a serious offence, which would cause significant damage or harm to others, if the defendant ceased to be a forensic patient. I also accept the opinion of Dr Elliott, for present purposes, on the basis that the matters upon which Dr Elliott bases his opinion must be assumed to be able to be proved, that the risk cannot be adequately managed by other less restrictive means.
As has been stated on a number of occasions, mostly in relation to high risk offenders, the assessment of an unacceptable risk requires an assessment based upon two factors in a matrix. The first factor is the risk of a person causing serious harm to others by offence or acts of violence and the second is the nature of the harm that would be caused. When those two factors are weighed together, neither of which need necessarily be proved to be more likely than not, the resulting satisfaction, assuming it is reached, that there is an unacceptable risk must be a satisfaction to a high degree of probability and must be accompanied by a satisfaction to the same high degree of probability that the risk is incapable of being managed adequately by less restrictive means.
In Attorney-General of NSW v Doolan, [1] Justice Adamson discussed the statute that previously applied and stated: "[34] I was referred to decisions of this Court in which the Forensic Provisions Act was considered. 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]. 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 ...'"
The test in the Act is the same as the test under its predecessor.
As was made clear by the Court of Appeal, [2] the nature of the risk must 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 Risk Assessment Report and other documentation before the Court in these proceedings shows that an assessment of all those issues is a fact alleged, which is capable of being proved at the final hearing, and which the Court, in these proceedings, assumes will be proved, and shows that the risk of offending is real and substantial, and not merely ephemeral. Further, if the risk manifested, the harm would be extremely serious as the past offending discloses.
Further again, the Court is required in dealing with whether it would issue an Extension Order, and therefore whether it should order an Interim Extension Order, to focus on the management of the patient's risk in the absence of such an Extension Order. Again, the nature of the risk must be assessed by reference to past conduct, the seriousness of any future possible conduct and the period over which the risk may come to fruition. This is assessed on the basis of the risk in the absence of protective measures.
Again, the material before the Court, including the Risk Assessment Report, alleges that the risk cannot adequately be managed by means that are less restrictive. The basis of that opinion is given in the Report. In order for the risk to be "adequately managed" by the less restrictive means requires that the unacceptability of the risk otherwise is ameliorated sufficiently to render it no longer unacceptable by means that are less restrictive than the regime that is imposed by means of the Extension Order.

Conclusion

Applying the foregoing principles to the facts of this case discloses, independently of any agreement between the parties, that there is an unacceptable risk that is incapable of being managed by less restrictive means. The unacceptable risk of which the Court is satisfied is the risk of serious violent offending based upon past offences and the difficulties associated with drug and alcohol abuse, which exacerbates the risk.
The Court, as presently constituted, makes clear that the assessment that the defendant poses an "unacceptable risk" is based upon the assumption that the matters alleged by way of psychiatric and risk assessment will be proved and, on that assumption, the Court is satisfied it would issue the Extension Order and is satisfied of that situation to a high degree of probability. I have already explained the manner in which the assessment of unacceptable risk is derived.
For all of the foregoing reasons, the Court makes the following orders: 1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment, Forensic Provisions Act 2020 (NSW) ("the Act"): 1. The Court appoints two qualified psychiatrists, psychologists, or medical practitioners (or any combination of two such people) to conduct separate examinations of the defendant and to furnish Reports to the Court on the results of those examinations by a date to be fixed by the Court; and 2. The Court directs the defendant to attend those examinations. 1. Pursuant to the provisions of s 130 and s 131 of the Act, the defendant is subject to an Interim Order for the extension of his status as a forensic patient, commencing 12 March 2023 for a period of three months. 2. Access to the Supreme Court file in respect of any document may not be granted to a non-party without leave of a judge of the Court, and, if any such 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 the opportunity to be heard in relation to the application for access.

Endnotes

Attorney-General of NSW v Doolan [2015] NSWSC 1773.
Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126]. 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: 28 February 2023

Mental Health and Cognitive Impairment, Forensic Provisions Act 2020(NSW)

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