State of New South Wales v Windle

Supreme Court of NSW|2017-05-24|Before: Johnson J

JUDGMENT

JOHNSON J: In these proceedings, the Plaintiff, the State of New South Wales, has sought orders against the Defendant, Andrew Robert Windle, under the Crimes (High Risk Offenders) Act 2006 ("High Risk Offenders Act").
As will be seen, these proceedings have taken an unusual course and have moved through different phases which have been affected by the significant mental health issues surrounding the Defendant.

The Hearings

Following a preliminary hearing on 14 December 2016, the Court made a high risk violent offender interim supervision order to operate for 28 days from 28 February 2017 (the expiration date for the Defendant's sentence), together with an order that the Defendant be examined by two Court-appointed psychiatrists: State of New South Wales v Windle [2016] NSWSC 1816.

Evidence at the Final Hearing

Ms Wright of counsel appeared for the Plaintiff at each stage of the proceedings, including the final hearing on 24 May 2017. Mr White of counsel appeared for the Defendant on each of these occasions. I express my gratitude to counsel for their assistance throughout the proceedings.
At the preliminary hearing on 14 December 2016, the Plaintiff relied upon the affidavit of Azam Yusuf Bulbulia affirmed 30 November 2016 and the extensive documentation which accompanied that affidavit.
At the further hearing on 16 February 2017, the Plaintiff relied upon Mr Bulbulia's affidavit together with affidavits of Paul Nash, solicitor, affirmed 2 and 13 February 2017 and of Karen Langdon, Unit Leader, Extended Supervision Orders Team, Corrective Services NSW, affirmed 10 February 2017.
At the final hearing on 24 May 2017, the Plaintiff relied upon the abovementioned affidavits together with the following: 1. affidavit of Karen Langdon affirmed 27 February 2017; 2. affidavit of Dr Matthew Hearps, Deputy Clinical Director of the Forensic and Long Bay Hospitals and the Defendant's treating psychiatrist, sworn 21 March 2017; 3. further affidavit of Dr Matthew Hearps sworn 10 May 2017; 4. affidavit of Dr Adrian Keller, Clinical Director of the Forensic and Long Bay Hospitals, affirmed 23 March 2017; 5. affidavits of Jonathan Vasiliou, solicitor, sworn 10 and 19 May 2017; 6. Determination dated 16 May 2017 of the Mental Health Review Tribunal following a review of the Defendant under s.59(1) Mental Health (Forensic Provisions) Act 1990; 7. Report of Dr Anthony Samuels, Court-appointed psychiatrist, dated 6 January 2017; 8. Supplementary Report of Dr Anthony Samuels dated 24 March 2017; 9. Report of Dr Jonathon Adams, Court-appointed psychiatrist, dated 16 February 2017; 10. Supplementary Report of Dr Jonathon Adams dated 24 March 2017.
Dr Adrian Keller gave oral evidence at the final hearing. No other witness was required for cross-examination.
No evidence was adduced in the Defendant's case at the final hearing.

The Issues at the Final Hearing

At the final hearing, the following issues fell for determination: 1. whether the Defendant is a "high risk violent offender": s.5E High Risk Offenders Act; 2. if he is a "high risk violent offender", whether the Court ought be satisfied that a CDO should be made and, if so, for what duration: s.5G; 3. if the Court makes a CDO, whether the Court has power, in the circumstances of this case, to also make an ESO to operate from the expiration of the CDO and, if it can, whether it should do so.
Counsel for the Defendant took a practical approach to the issues in the proceedings having regard to the evidence before the Court.
With respect to paragraph 14(a), Mr White made no submission in reply to the Plaintiff's submission that the Defendant was a "high risk violent offender".
With respect to paragraph 14(b), Mr White did not seek to be heard against the making of a CDO in this case, although he opposed a CDO of 12 months' duration (as sought by the Plaintiff) and submitted that the order should be for no longer than four months.
Based upon the psychiatric evidence (to which reference will be made), Mr White made no submission concerning the proposed treatment plan to be provided to the Defendant to address his psychiatric conditions. No issue was taken with the evidence of Dr Hearps, the Defendant's treating psychiatrist. Mr White observed that the Defendant is seeking to have his psychiatric conditions treated to assist his general welfare, and to avoid any risk of him committing a serious violence offence in the future.
With respect to paragraph 14(c), the Defendant submitted that, in the circumstances of this case, the Court did not have power to make an ESO which would operate from the expiration of any CDO. If the Court did have power to make an ESO, it was submitted that the Court should not do so in the circumstances of this case.
These various issues will be addressed in the balance of this judgment. The approach of counsel for the Defendant is helpful, but it remains a matter for the Court to determine whether orders should be made and, if so, their duration.

Some Threshold Issues

The primary object of the High Risk Offenders Act, as stated in s.3(1), is relevantly "… to provide for the extended supervision and continuing detention of high risk … violent offenders so as to ensure the safety and protection of the community". Section 3(2) provides that another object of the High Risk Offenders Act is to encourage such offenders to "undertake rehabilitation".
Under s.5E(1) High Risk Offenders Act, an offender can be made the subject of an ESO or a CDO only if he is a "high risk violent offender", which is defined in s.5E(2) to be a "violent offender" where "the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision".
The term "violent offender" is defined in s.4 to mean "a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious violence offence". The term "serious violence offence" is defined in s.5A High Risk Offenders Act which states: "5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements. (2A) A reference in subsection (1) (a) to: (a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and (b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and (c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person. (3) A serious indictable offence is: (a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or (b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or (c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act."
The Defendant falls within s.5A(1) High Risk Offenders Act as he had pleaded guilty to and been sentenced for an offence committed whilst in custody on 1 January 2011 of attempting to strangle with intent to murder under s.29 Crimes Act 1900, an offence punishable by 25 years' imprisonment. Following a Crown appeal against sentence, the Defendant was sentenced by the Court of Criminal Appeal for this offence for a term of imprisonment for five years and four months with a non-parole period of four years: R v Windle [2012] NSWCCA 222.
I accept the Plaintiff's submission that the threshold criteria applying to the making of an application for a CDO are satisfied in the present case on the basis that: 1. the Defendant is a "violent offender" within the meaning of s.4 on the basis that he has been convicted of a "serious violence offence" as defined in s.5A(1)(b), being the offence under s.29 Crimes Act 1900; 2. the Defendant meets the definition of "detained violent offender" in s.13C(2) on the basis that he was in custody serving a sentence for a serious violence offence at the time the Amended Summons was filed on 2 February 2017; 3. the application was brought within the last six months of the Defendant's then current custody in compliance with s.13C(3) High Risk Offenders Act.
Accordingly, I am satisfied that the threshold requirements for the Plaintiff's application have been met in this case.

Has the Plaintiff Established that the Defendant is a "High Risk Violent Offender"?

For the Defendant to be a "high risk violent offender", it is necessary for the Court to be satisfied to a high degree of probability that he poses an unacceptable risk of committing a "serious violence offence" if he is not kept under supervision: s.5E(2). The state of satisfaction in s.5E(2) is the gateway to the power to make an ESO or CDO under s.5F and s.5G: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at 396 [24].
In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, the Court of Appeal clarified the meaning of the unacceptable risk test with respect to high risk violent offenders in s.5E(2) High Risk Offenders Act. The Court observed that determination whether a risk is unacceptable involves an evaluative task (at 646 [51]). The Court held that the evaluation to be made under s.5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection (at 648-649 [61]).
The Court must be satisfied "to a high degree of probability" that the Defendant poses an "unacceptable risk" of committing a relevant offence if not kept under supervision. The standard of proof lies between the ordinary civil standard and the criminal standard: Cornwall v Attorney General for NSW [2007] NSWCA 374 at [21]. Section 5E(3) makes clear that an unacceptable risk of committing a "serious violence offence" can be a risk which is less than 50%: State of New South Wales v Donovan at 396 [21].
The Defendant is now 27 years old. As will be seen (at [45]-[46] below), the Defendant has a significant history for offences of violence. His most serious offence is the index offence under s.29 Crimes Act 1900. The Defendant's history is one of crimes of escalating violence. I have kept firmly in mind that the required risk relates to the commission of a "serious violence offence" and not just any offence which involves violence. It is necessary to have regard to all the evidence before the Court at the final hearing. This includes evidence of the Defendant's offences, together with the body of psychiatric evidence, which points to the substantial risk which the Defendant poses at the present time.
The Defendant's criminal history includes offences of arson in 2007 (involving a firebombing) (see [46] below) and an offence of specially aggravated entry of a dwelling with intent to steal (also in 2007) where the Defendant brandished a knife and injured the householder during the commission of the offence (see [46] below).
Although these two offences do not fall within the definition of a "serious violence offence", they both shed considerable light upon an assessment of risk that the Defendant may commit a "serious violence offence" if he is not kept under supervision. After committing these offences, the Defendant committed the "serious violence offence" under s.29 Crimes Act 1900 by attempting to strangle, with intent to murder, a fellow prisoner when in a correctional centre in 2011.
Having regard to all the evidence, including the psychiatric evidence to which reference will be made, I am satisfied, to a high degree of probability, that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
The Plaintiff has established that the Defendant is a "high risk violent offender" for the purpose of s.5E High Risk Offenders Act.

Some Further Statutory Provisions and Legal Principles

Section 17(1) provides that the Supreme Court may determine an application for a CDO by: 1. making an ESO; or 2. making a CDO; 3. dismissing the application.
The test for making a CDO contains a requirement additional to the unacceptable risk test which applies to both CDOs and ESOs. The Supreme Court must be satisfied that adequate supervision will not be provided by an ESO for the purpose of s.5G(1). With respect to this aspect, the Court of Appeal said in State of New South Wales v Donovan: 1. in an application for a CDO, the onus lies on the State to prove that adequate supervision will not be provided by an ESO (at 396 [23]); 2. the test is not whether there is a risk that adequate supervision will not be provided by an ESO, but rather that adequate supervision will not be provided by an ESO - the power in s.5G presupposes an actual state of satisfaction by the Supreme Court not of the risk of something occurring in the uncertain future, but that adequate supervision will not be provided by an ESO in the uncertain future (at 396 [22]); 3. whether an ESO will provide adequate supervision involves an evaluative judgment to be undertaken by the Court according to the circumstances of the individual case and having regard to the objects stated in s.3, giving primacy to the objects stated in s.3(1) (at 406 [77]); 4. whether there will be "adequate supervision" turns on an assessment of the particular ESO which is proposed and a consideration of the risk factors pertaining to the individual (by reference to the psychiatric or psychological evidence) and the likelihood of offending conduct during the period of supervision and its likely gravity (at 407 [76]); 5. even if the Court determines that adequate supervision will not be afforded by an ESO, the Court has a discretion to decline to make a CDO (at 394 [15]).
The question of whether adequate supervision will not be provided by an ESO is to be determined on the ordinary civil standard: Bugmy v State of New South Wales [2017] NSWCA 25 at [54].
In determining whether or not to make a CDO, the Court must have regard to the matters listed in s.17(4) High Risk Offenders Act, with these matters being mirrored in s.9(3) in respect of an ESO.
A CDO or ESO may not exceed five years: ss.10, 18 High Risk Offenders Act. A breach of ESO conditions is an offence under s.12 High Risk Offenders Act.
The conditions that may be imposed on an ESO are set out in s.11 High Risk Offenders Act. With respect to the imposition of conditions, it is necessary to keep in mind the approach outlined by the Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [47]-[54].
In Wilde v State of New South Wales, the Court of Appeal said: 1. the discretion to impose conditions under s.11 is broad, but must be exercised having regard to the scope and purpose of the High Risk Offenders Act and its objects (at 76 [47])' 2. section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act - rather, the Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order (at 76-77 [53]).

Factors under s.17(4) High Risk Offenders Act

I turn to the factors under s.17(4) and will deal with them out of their statutory order, but in a manner which is convenient for the purpose of this judgment.
I should observe that identical provisions exist in s.9(3) with respect to an application for an ESO. As the Plaintiff's application under s.25B is that the Defendant be subject to a CDO followed by an ESO, my assessment of s.17(4) factors should be treated as well as an assessment under the equivalent provisions in s.9(3) concerning the application for an ESO. Criminal History and Pattern of Offending Behaviour: s.17(4)(h)
In State of New South Wales v Windle, I outlined the Defendant's criminal history and pattern of offending behaviour for the purposes of s.9(3)(h) High Risk Offenders Act. Although the application has now altered to one for a CDO followed by an ESO, the findings made in that judgment remain apt.
In State of New South Wales v Windle, I said at [20]-[23]: "20 I am satisfied that the Defendant's criminal history discloses frequent offences of violence. The offences will be referred to in reverse chronological order, commencing with the index offence, an offence of attempted murder. 21 The Defendant was born in November 1989. 22 Whilst in prison serving a term of imprisonment, he committed an offence on 1 January 2011 of attempt to strangle or suffocate with intent to murder under s.29 Crimes Act 1900 (maximum penalty 25 years' imprisonment). Following a plea of guilty, he was sentenced for that offence by Garling DCJ in the District Court. The Crown appealed against the sentence imposed at first instance. The Court of Criminal Appeal allowed the Crown appeal and increased the sentence: R v Windle [2012] NSWCCA 222. The circumstances of the offence are referred to R v Windle at [4]-[6]: '4 The circumstances of the offending were briefly but sufficiently outlined by Garling DCJ in his judgment on sentence (pp 1-2). Both the offender and the victim were inmates at Long Bay Correctional Centre, the victim being 39 years of age. Both were in the shower area, where they had a short and unremarkable conversation. The victim turned his back on the offender to check the temperature of the water, at which point the offender put a sock around his neck pulling it tight so that he could neither get the sock away from his throat, nor, ultimately, breathe. The victim lost consciousness and fell to the floor. When he regained consciousness he called for help from another inmate who in turn brought a prison officer to his aid. 5 When both inmates were locked in their respective cells, the offender called out to the victim asking whether he was 'still going to charge' the offender. When the victim said yes, the offender asked why. The victim replied 'because you haven't even apologised yet. Why did you do it?'. The offender answered 'I don't know'. 6 The statement of facts prepared by the Director continued: 'On the morning of 2 January 2011, senior Corrective Services Officers spoke with Windle. Windle indicated that he had followed [the victim] into the shower area and then, after [the victim] undressed, he (Windle) put a sock around [the victim's] neck and tried to kill him. Windle indicated that he did not know why he did it, he 'just had to do it'. Windle indicated that he stopped strangling [the victim] because he thought [the victim] was dead. Windle indicated that he continued to strangle [the victim] when [the victim] collapsed to the ground. He continued to strangle [the victim] while [the victim] was on the ground, then [the victim] 'shook a bit' then 'urinated himself'. Windle indicated that he then thought [the victim] was dead so he walked out of the shower area with the sock, put the sock on a nearby shelf with other clothes, and then began to 'walk laps outside'.' 23 In the District Court, the Defendant was sentenced to a term of imprisonment of four years and six months, with a non-parole period of two years and six months. On appeal, the Court of Criminal Appeal increased the sentence to a term of imprisonment of five years and four months, commencing on 29 October 2011, with a non-parole period of four years."
In State of New South Wales v Windle, I summarised the Defendant's other criminal convictions for offences of violence committed between 2005 and 2007. I said at [26]-[39]: "26 The Defendant has other criminal convictions for offences of violence. At the time he committed the offence of attempted murder, he was serving a sentence of imprisonment for the offence of specially aggravated entering a dwelling with intent to steal under s.111(3) Crimes Act 1900 (maximum penalty 20 years' imprisonment) committed on 17 December 2007. The Defendant entered a unit at Bondi Beach with intent to steal in circumstances of special aggravation, in that he knew persons were in the premises and he wounded an occupant of the premises. The victim was asleep on a lounge inside the premises in the late evening as he and his partner had a baby who needed attention throughout the night. The victim became aware of another person in the lounge room. The Defendant pushed down on the victim's hands and chest with one hand, while holding a large knife in the other hand. He had obtained the knife from the kitchen. The victim screamed, 'What do you want?'. And the Defendant said, 'Money, car keys, everything'. The victim wrestled with the Defendant while trying to disarm him of the knife. In the course of the struggle, the victim sustained cuts to his hand. There was a slight cut to the palm and a deep laceration to a finger which required stitches. The victim's partner ran from the unit, screaming for help. The victim managed to get the knife from the Defendant, who then ran out the front door. The Defendant's DNA was found at the scene. 27 The Defendant was sentenced for this offence on 14 August 2009 by Sweeney DCJ in the District Court to a term of imprisonment of four years with a non-parole period of 18 months, commencing on 30 April 2009. Her Honour was not prepared to make a finding that the Defendant had good prospects of rehabilitation and remarked that there was a need for protection of the community. Her Honour observed that the injuries were at the lower end of seriousness and that the offence was impulsive. However, the sentencing Judge found that this was a serious offence, including the fact that the victim was greatly concerned for the safety of his baby. Her Honour described the Defendant as a disturbed young man with a history of self-harm and referred at length to the report of Dr Richard Furst, psychiatrist, dated 1 July 2009. Dr Furst recorded that the Defendant had told him that he had been 'roaming around the streets' intoxicated with ecstasy at the time of the offence, and that he entered the unit without planning, wanting more money for drugs. Dr Furst noted that the Defendant came from a troubled and unstable family, had limited intellect and was at risk of developing a major mental illness in the future due to his extended period of substance abuse and a period of psychosis in 2007. 28 Moving back in time, the Defendant committed offences in 2007 at a time when he was a juvenile, being 17 years and nine months old. The offences were damaging property with intent to injure a person by means of a fire (an arson offence under s.196(1)(b) Crimes Act 1900, punishable by imprisonment for 14 years), and using a carriage service to threaten serious harm (an offence under s.474.15(2) Criminal Code (Cth)). At the time of these offences, the Defendant was on parole. 29 The material available to the Court indicates that, on 9 September 2007, the Defendant sent text messages to the victim, asking for a lift to the shops. The victim was visiting a friend in hospital and did not see the message. The Defendant then sent angry messages which culminated in an exchange of text messages in which the Defendant wrote, 'Your house will burn to the ground, cunt' and 'You're gunna get fucked up tonight'. He telephoned the house later in the day, saying, 'You're dead, cunt. I'm gunna fuck you up' and a text saying 'Make sure you're awake at 1am cause you're gunna have to run'. At 10.00 pm that evening, a witness seated in the lounge room of the victim's house at St Johns Park heard a loud bang and the whole front balcony was engulfed by flames. A witness saw the Defendant running down the street. In an interview with police, the Defendant said he had bought a jerry can and petrol and had consumed alcohol. He said 'I threw the firebomb at his house 'cause he deserved it''. He said that when he lit the house he could see and hear people inside, saying, 'I didn't really care what happened to them … they'd be traumatised' and 'I didn't want to kill anyone'. 30 For these offences, the Defendant was sentenced in the Parramatta Children's Court on 16 July 2009 to a fixed-term control order of 10 months. 31 Moving back in time once again, on 23 January 2007 the Defendant committed an offence of armed robbery with an offensive weapon (an offence under s.97(2) Crimes Act 1900 punishable by imprisonment for 25 years). He committed a robbery of a Blockbuster video store on 23 January 2007 in the company of his uncle. The Defendant had been released to parole the previous day. The police facts state that the Defendant produced a black-handled knife with a 13-centimetre blade and he held the blade to the victim's ribcage and said, 'I'm gunna stab ya'. He demanded the victim open the till and his uncle removed $500.00 in cash. 32 For this offence, the Defendant was sentenced in the Parramatta Children's Court to a control order for 24 months, with a non-parole period of six months, commencing on 21 January 2007. 33 The Defendant was released to parole on 22 July 2007, but re-entered custody on 6 August 2008 on a warrant for breach of parole. His parole was revoked, effective 30 October 2007, and he was ordered to serve the remainder of his parole in custody, with a release date of 29 October 2009. 34 Once again moving back in time, on or about 14 July 2006, whilst the Defendant was being held in the Cobham Juvenile Detention Centre, he committed an offence of common assault. He spat in the face of a juvenile detention officer who was attending his cell, following a report that the Defendant had swallowed a screw in an act of self-harm. For this offence, he was sentenced to a control order for three months. 35 The previous year, on 14 June 2005, the Defendant committed offences of assaulting an officer in the execution of duty, larceny and goods in custody. The Defendant was observed by a loss prevention officer at Target in Liverpool opening DVD cases and placing disks down the front of his trousers before leaving the store. He was approached and questioned by the store employee and was taken into an office. Police arrived and the Defendant was cautioned and searched. During that process, the Defendant pushed the female police officer against the wall and punched her in the face. For these offences he was placed on probation for 12 months. 36 Twelve days earlier, on 2 June 2005, the Defendant committed offences of common assault, entering enclosed lands and having custody of an offensive implement in a public place. On that day, the Defendant entered the Macarthur Square shopping complex, despite having been banned from the centre in the previous month. He was questioned by security guards and he then pulled a medium-sized flat screwdriver from his jacket pocket, holding it out towards one of the guards. A scuffle ensued in which the Defendant resisted arrest and he would not let go of the screwdriver. He was eventually apprehended by police. He appeared in the Bidura Youth Drug Court and was given a two-year good behaviour bond. 37 On 11 May 2005, the Defendant committed two offences of common assault. The Defendant was at Liverpool railway station and he assaulted two male transit officers when he was called aside and asked to produce a valid ticket, which he could not do. He hit one transit officer in the face and headbutted the other. Police were called once he had been restrained in handcuffs. He was released on probation for these offences to participate in drug and alcohol and other programs. 38 On 6 May 2005, the Defendant committed offences of common assault, stalking or intimidating with intent to cause fear of harm and shoplifting. He had attended the Big W store in Macarthur Square at Campbelltown. The Defendant was observed by the loss prevention officer attempting to steal DVDs. He was asked to leave the store. He threw a punch at the female officer and hit her bag, pushing her backwards. He then threw clothing at her before security officers apprehended him. Before he was removed from the store by police, he threatened the loss prevention officer and said he would return to burn down the store. The Defendant was on a bond at the time of these offences. For these offences, the Defendant was placed on probation to participate in a drug and alcohol and other programs. 39 On 17 April 2005, the Defendant committed offences of common assault and stalking or intimidating with intent to cause fear of harm. He was observed loitering around Campbelltown railway station and was asked to move on by a security guard. The Defendant returned with a broken bottle and argued with the security guard. The Defendant held the bottle in an intimidating manner and then threw the bottle at the security guard, hitting him in the leg but causing no injury. The Defendant left but returned later with a one-metre piece of wood, which he waved at the victim. Another argument ensued before the Defendant was apprehended by Transit Police. The Defendant was on bail for stealing at the time of this offence. He was sentenced by way of a 12-month good behaviour bond for these offences."
The judgment continued at [40]-[41]: "40 Apart from these offences of violence, the Defendant has an extensive criminal history, including larceny, car theft, shoplifting, break and enter and malicious damage. 41 In my view, a narrative of these offences of violence makes good the Plaintiff's submission that the Defendant's criminal history, over his relatively short life, has involved frequent use of violence and escalating violence." Views of Sentencing Courts: s.17(4)(h1)
In State of New South Wales v Windle, I referred to the remarks on sentence of Garling DCJ and the decision of the Court of Criminal Appeal in R v Windle, noting at [43]-[47]: "43 At first instance, Garling DCJ described the offence of attempting to strangle with intent to murder as a very serious offence involving an attempt to murder a fellow prisoner. His Honour observed that the Defendant needed treatment and rehabilitation and had mental and alcohol and drug issues. His Honour accepted that the Defendant had been charged with this offence only because of admissions he made that he intended to kill the victim. His Honour accepted that this was not a sophisticated attempted murder and had no apparent motive. The sentencing Judge found that the offence fell below the mid-range for this sort of very serious offence. I have already mentioned the sentence imposed at first instance by his Honour. 44 In the Court of Criminal Appeal, Basten JA delivered the leading judgment of the Court (with which Price J agreed). Basten JA observed (at [54]) that a number of elements favoured a degree of leniency, including the impulsiveness of the act, the temporary harm suffered by the victim, the Defendant's voluntary disclosure of his intention to kill and his level of mental illness. 45 Importantly, Basten JA noted (at 56) that there was an 'element of dangerousness' to be taken into account in the context of the risk of further offending. This observation reflected the competing considerations in sentencing an offender with a mental illness, of the type referred to by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68. 46 Basten JA observed as well (at 55) that the likelihood of the Defendant's rehabilitation probably depended upon his acceptance of the need for treatment, particularly when eventually released from custody. His Honour noted that there was then little material to support the likelihood of such acceptance. 47 As I have noted, the sentencing outcome was the imposition by the Court of Criminal Appeal of a heavier sentence than that imposed at first instance." Reports of Court-Appointed Experts: s.17(4)(b)
As mentioned earlier, Dr Samuels and Dr Adams examined the Defendant as Court-appointed experts pursuant to the order made by the Court on 14 December 2016. That order, of course, related to the Plaintiff's then application for an ESO, and not a CDO.
Dr Samuels examined the Defendant on 6 January 2017 at a time when the Defendant was housed at the Metropolitan Special Programs Centre - Four Wing at the Long Bay Correctional Centre. Soon after that date, the Defendant was admitted to the mental health unit of the Long Bay Hospital as a result of an order made under s.55 Mental Health (Forensic Provisions) Act 1990 directing that the Defendant be transferred to a mental health facility (the Long Bay Hospital) upon the basis that he was a mentally ill person.
Dr Adams examined the Defendant for the first time on 28 January 2017, by which time the Defendant had been housed at the Long Bay Hospital for about three weeks.
The December 2016 order under s.55 Mental Health (Forensic Provisions) Act 1990 was based upon two medical certificates which indicated that the Defendant was experiencing persecutory delusions, control delusions (that "Stuart" lived in his brain and had "urged" him to cut off body parts and harm others) and hallucinations (involving "Stuart" and "Katrina"). At that time, a psychiatric registrar had noted that the Defendant was reporting auditory hallucinations and described other phenomena. The Initial Reports of Dr Samuels and Dr Adams
When first examined by Dr Samuels on 6 January 2017 (the date of Dr Samuels' first report), the Defendant stated that he still heard the voices of "Stuart" and "Katrina", with these having been present only since 2015 (paragraph 174 of report). Dr Samuels noted that the Defendant had a "history highly suggestive of severe personality disorder" (paragraph 178). In light of a number of features, including the Defendant's delusional thinking, auditory hallucinations and command hallucinations to self-harm, Dr Samuels considered that there was a very strong possibility that the Defendant was now suffering from paranoid schizophrenia (paragraph 180). Dr Samuels considered that the most important modifiable risk factors with respect to the Defendant would be treatment of his emerging psychotic illness effectively, with it being possible that the Defendant might respond to Clozapine if that was introduced with the prospect of altering his risk profile (paragraph 193).
Dr Samuels considered that the Defendant was at a higher risk of committing a further violent offence based on his static and dynamic risk factors and his lack of protective factors (paragraphs 185-189). In Dr Samuels' opinion, the major factors contributing to the Defendant's risk of violence were problems with his cognition, a severe personality disorder, substance misuse issues and his emerging psychotic illness most likely to be paranoid schizophrenia (paragraph 207).
Dr Samuels' main concern related to the Defendant's unstable mental state, and what appeared to be a frank psychotic illness, with it being possible that his delusional thinking or command hallucinations or other psychotic phenomena could lead the Defendant to act in a violent or aggressive manner (paragraph 207).
Dr Samuels stated that, until the Defendant's mental state was more stable, it would be premature to release him on an ESO into the community (paragraph 208). Dr Samuels considered that the Defendant should be treated, and his mental state stabilised, in the mental health unit of Long Bay Hospital or the Forensic Hospital, prior to transfer to a Community Offenders Service Program ("COSP") and the implementation of an ESO (paragraph 210).
Dr Samuels further explained his reasoning on this aspect at paragraphs 211-212: "210. The conditions outlined in the Summons would seem to be appropriate at the point that Mr Windle's mental state is stable. I am concerned however that his mental state is not currently stable and the fact that he is experiencing frank hallucinations with commands to self-harm does, in my view, raise his current risk. I understand he is to be moved to a hospital facility for a trial of Clozapine. Ideally he should be treated and his mental state stabilised in the mental health unit of Long Bay Hospital or alternatively the Long Bay Forensic Hospital prior to transfer to a COSP and the implementation of any ESO. 211. If the plan is to release him into the community under an ESO before his mental state is stabilised, it may be necessary to transfer him under the provisions of the Mental Health Act 2007 (NSW), into a general hospital psychiatric unit for further treatment, stabilisation and possibly rehabilitation outside of the custodial setting. Following this period of treatment and rehabilitation he could then be transferred from hospital to a COSP and the provisions of the ESO could be enforced."
As mentioned, Dr Adams first examined the Defendant on 28 January 2017. In his report dated 15 February 2017, Dr Adams provided an opinion concerning the Defendant. Dr Adams formed a diagnosis of borderline personality disorder and antisocial personality disorder (page 24). Dr Adams noted that the Defendant had attracted different psychiatric diagnoses over the years, although there was a consistent view that he suffers with a personality disorder. A more recent diagnosis of psychotic illness (schizophrenia) had resulted in his transfer to the Long Bay Hospital mental health unit and treatment with Clozapine (antipsychotic medication usually reserved for treatment-resistant psychotic illnesses) (page 24). Dr Adams was more cautious with respect to a diagnosis of psychotic illness, noting the limitations of his own assessment. Although observing that it was difficult at that stage to provide a definitive opinion regarding these psychiatric issues, Dr Adams observed that a "differential diagnosis would certainly include a psychotic disorder, such as schizophrenia, and I would not foreclose on this being a possibility" (page 25).
Dr Adams expressed the opinion that the Defendant "manifests a significant loading of historical, clinical, and future risk management factors, such that he could be considered to be a risk of committing a further serious violent offence" (page 25).
Dr Adams expressed the view that the Defendant "will continue to pose a risk of committing a further serious violent offence in the longer term, likely several years, unless his risk management needs are met appropriately" (pages 25-26).
In response to a question as to whether the Defendant's risk could be managed in the community under an ESO, Dr Adams responded in the negative with his answer including the following (page 26): "Given my formulation of Mr Windle's significant violence risk, his longstanding history of engaging in problematic behaviour (including serious violence) the relatively unpredictable nature of Mr Windle's violent behaviour, and current diagnostic issues regarding the possibility of a psychotic illness, in my opinion his treatment and risk management needs would currently best be met in a psychiatric hospital. The therapeutic security level of the psychiatric hospital should be commensurate with Mr Windle's risk management and security needs. Based upon what I currently know of Mr Windle's case, in my view the most appropriate placement if he were to be released from custody would currently be a high secure psychiatric hospital The Forensic Hospital is the only high secure forensic mental health hospital m NSW."
Dr Adams emphasised, once again, the important role of the Forensic Hospital in the treatment of the Defendant (page 27): "As discussed above, at the time of my assessment in my view Mr Windle could not appropriately be managed under the conditions of an ESO in the community, and in my view the most appropriate placement would be a psychiatric hospital. If consideration is given to Mr Windle's release from custody, my opinion is that the most appropriate psychiatric facility is the Forensic Hospital. An admission to the Forensic Hospital would allow for Mr Windle's ongoing psychiatric assessment and management within appropriate therapeutic security arrangements. From there, consideration could be given to the most appropriate step-down placement, for example a psychiatric hospital of lower security." Supplementary Reports of Dr Samuels and Dr Adams
Following the orders made by the Court on 16 February 2017 (State of New South Wales v Windle (No. 2)), the Court-appointed psychiatrists were requested to provide further reports with respect to the Defendant. The Plaintiff's application now sought a CDO and not just an ESO.
Dr Samuels provided a supplementary report dated 16 March 2017. He did not examine the Defendant again for the purpose of this report. Rather, Dr Samuels had regard to a substantial volume of material which had been provided to him with respect to the treatment of the Defendant since January 2017. In addition, Dr Samuels spoke to Dr Hearps, the Defendant's treating psychiatrist.
The Defendant's recent change of circumstances did not give rise to an altered opinion by Dr Samuels. He said (paragraph 33): "It remains my view that Mr Windle poses a risk of committing a further serious violence offence with major factors relating to his violence being problems of cognition, severe personality disorder, substance misuse issues and the most important current factor would seem to be an emerging psychotic illness, most likely Schizophrenia."
Dr Samuels observed that, following his discussion with Dr Hearps and his review of the materials, the Defendant "needs a prolonged period of inpatient psychiatric hospitalisation and rehabilitation" (paragraph 35). Dr Samuels noted the desirability of the Defendant being treated in the Forensic Hospital when a bed became available, with him being housed at the Long Bay Hospital in the meantime. He considered that the Defendant may need to be treated in the Forensic Hospital for a period which could exceed 12 months with him then progressing to a step-down unit, preferably a medium secure unit if a bed was available. Dr Samuels noted that such a facility exists at Bloomfield Hospital in Orange with some beds also being available at the Morisset Hospital (paragraph 35-36).
In response to a question as to whether there would be a difference between treatment of the Defendant at Long Bay Hospital or in a mental health facility in the community, Dr Samuels replied in emphatic terms (paragraphs 38-40): "38. Having spoken to Dr Hearps I concur that his risk is far too high to be managed in a general hospital psychiatric unit and he does need to be in a forensic psychiatric unit. Although Long Bay Hospital is not ideal, there is no immediate option to transfer him to the Long Bay Forensic Hospital. Long Bay Hospital certainly offers a more therapeutic environment than the general prison setting but doesn't have the capacity for rehabilitative interventions. Although not completely ideal, this does seem to represent the most viable interim option. 39. Mr Windle should, in my view, be transferred as soon as possible to the Long Bay Forensic Hospital which is a high secure psychiatric unit which has the capacity for intensive psychiatric care and rehabilitation. 40. I certainly do not feel that he could be managed in a general hospital psychiatric unit at the present time."
Dr Samuels considered that the proposed conditions of an ESO would be reasonable, but only if they were in conjunction with an ongoing community treatment order ("CTO") (under the Mental Health Act 2007) because he considered the Defendant's psychiatric risks "as being paramount in terms of risk of reoffending" (paragraph 41).
In response to a question as to whether, based on the Defendant's current mental state, he could be adequately and appropriately managed in the community under the provisions of a CTO or under a CTO together with an ESO, Dr Samuels replied (paragraph 42): "I do not believe he could be managed alone with a CTO. The capacity to enforce community orders is somewhat limited and there are logistic difficulties in terms of breaching CTOs and community treatment teams often do not have the resources to intensely manage patients under these orders. I feel it would be appropriate if there was a CTO in place in conjunction with an ESO and that the members of the Community Mental Health Team work closely with those overviewing the provisions of the ESO. There would need to be very good communication between both agencies."
Dr Samuels considered that the risk would be too high to release the Defendant from Long Bay Hospital into the community, and noted that a COSP facility would not manage his mental health needs (paragraph 43).
Dr Adams provided a supplementary report dated 20 March 2017. Like Dr Samuels, Dr Adams had not examined the Defendant again, but had considered a substantial volume of material which had been provided to him, as well as to Dr Samuels. Dr Adams also spoke to Dr Hearps on 15 March 2017 concerning the management and treatment of the Defendant.
Based on the additional information which had been provided to Dr Adams, he indicated that his opinion with regard to the Defendant's clinical formulation and diagnosis had not altered, nor had his opinion with respect to the Defendant's risk of violent offending (page 5). Dr Adams remained of the opinion that, in terms of future psychiatric management, the Defendant required ongoing treatment in a psychiatric hospital (page 6).
In response to a question as to how long he considered that the Defendant needed to remain in a mental health facility before he could be released into the community under supervision, Dr Adams replied (page 6): "Providing an accurate timeframe regarding how long Mr Windle will require psychiatric hospitalisation is difficult at this stage, the reason being that his length of stay will depend upon his response to treatment strategies. He has recently been commenced on Clozapine, an antipsychotic medication usually reserved for medication resistant psychotic illnesses. It is commonly the case that patients require a reasonably significant period of time to become stable on Clozapine. There is also no guarantee that Mr Windle will continue to tolerate Clozapine, nor that his mental state will respond positively to it. In terms of treatment needs, there are additional aspects to consider alongside medication. Given Mr Windle's pervasive and persistent personality pathology, problematic behaviour, and more recent possibility of a psychotic illness, he will also require assertive psychological and social management strategies in order to effectively manage his level of risk. Although an accurate timeframe is difficult to provide, in my view it is reasonable to suggest that Mr Windle will require a period of over twelve months in a hospital environment, commencing at a high therapeutic security level. I believe it is likely that Mr Windle would benefit from transitioning through lower therapeutic security levels. ie. From the high secure Forensic Hospital to a medium secure unit, and from there to a low secure unit, which might well take a significant period of time. Mr Windle should only be placed in the community once his risk and treatment needs can be adequately met in this environment."
Dr Adams remained of the opinion that, if the Defendant's release from custody is to be considered, he should be "admitted into the Forensic Hospital, the only high secure forensic psychiatric hospital in NSW" (page 7).
If the Defendant was to be released into the community upon discharge from a mental health facility, Dr Adams was asked whether adequate supervision would be provided by an ESO with the conditions proposed by the Plaintiff. Dr Adams responded (page 7): "As discussed in response to Question 2, it is my view that Mr Windle should only be managed in the community once his risk and treatment needs can be adequately provided for. I have reviewed the conditions proposed in the Amended Summons, all of which appear reasonable in order to manage Mr Windle's risk management needs once he no longer requires placement in a psychiatric hospital. However, it is difficult at this stage to predict when this might be, or if his treatment needs will change over time."
In response to a question as to whether the Defendant could be adequately and appropriately managed in the community under a CTO, or under a CTO with an ESO, Dr Adams replied (page 7): "Based upon my previous assessment of Mr Windle, review of the material made available, and discussions with his current treating psychiatrist, it is my view that Mr Windle could not currently be managed appropriately in the community, given his risk management and treatment needs. In my opinion he currently requires placement in the high security Forensic Hospital if consideration was given to his release from custody."
Dr Adams concluded his report with a suggested course of action which (as will be seen) the Court was invited to facilitate by both the Plaintiff and the Defendant at the final hearing. Dr Adams said (page 8): "If Mr Windle was to be released from custody the ideal situation would be for him to be admitted straight in to the Forensic Hospital under provisions of the Mental Health Act 2007. If a bed was not immediately available in the Forensic Hospital, he should be scheduled under provisions of the Mental Health Act 2007 to the nearest mental health facility (usually the Prince of Wales Hospital). From here he would ideally be transferred to the high secure Forensic Hospital, following liaison with appropriate management teams."
Neither Dr Samuels nor Dr Adams was required for cross-examination at the final hearing. No challenge was made to the opinions expressed by each of the Court-appointed experts with respect to the matters which fall for determination in this judgment. Assessments by Psychiatrists or Psychologists: s.17(4)(c)
A risk assessment report prepared by Mr Samuel Ardasinski, psychologist, dated 3 October 2016 was before the Court at the preliminary hearing. For present purposes, it is sufficient to repeat what was said concerning Mr Ardasinski's report in State of New South Wales v Windle at [49]-[56]: "49 Before the Court at this preliminary hearing is a risk assessment report carried out by Mr Samuel Ardasinski, forensic psychologist, dated 3 October 2016. Mr Ardasinski expresses the opinion that the Defendant is at a high risk of further violent offending. Mr Ardasinski referred to various risk assessment tools, including the Level of Service Inventory-Revised (LSI-R), the Violence Risk Appraisal Guide-Revised (VRAG-R) and the Violence Risk Scale (VRS). He also considered the Defendant's dynamic risk factors. The Defendant scored on the LSI-R as medium-high risk of reoffending, with a high risk of violent reoffending on the VRAG and a high risk of reoffending on the VRS. 50 Mr Ardasinski noted that the Defendant had committed the majority of his offences of violence in the community within the context of drug and alcohol abuse. He noted, as well, that the Defendant had engaged in both retaliatory violence against people whom he perceived as having wronged him in some way, and spontaneous and unprovoked violence. It was said that stress is likely to be a precursor to the Defendant's violent offending in all of those scenarios. 51 In addition, Mr Ardasinski refers to the Defendant's repeated acts of serious and bizarre self-harm in custody, including cutting wrists, swallowing screws, severing parts of his ear, biting himself, removing stitches, cutting his mouth with a razor blade and other acts of self-harm. 52 Mr Ardasinski considered that the Defendant's main risk factors involved his personality disorder and mental health issues, with a history of homicidal thoughts and a curiosity about bizarre acts of violence, including self-mutilation. He noted that the Defendant's psychological record included a note that he had a curiosity about how it would feel to kill a person. 53 Mr Ardasinski said that one of the most concerning risk issues was that some of the Defendant's recent violence in custody had involved spontaneous thoughts to harm others, with little warning or justification for the type of violence enacted. Reference was made as well to the Defendant's poor capacity to deal with stress, emotional regulation, maladaptive coping and marked impulsivity. It was noted that the Defendant would feel rejected or aggrieved and ruminate and make threats in that context. Reference was made as well to the Defendant's history of substance abuse, his history of both reactive and instrumental violence and his weapon possession and use in the past. Mr Ardasinski pointed as well to the Defendant's social isolation, poor interpersonal skills, loneliness and boredom. 54 Mr Ardasinski noted that most of the Defendant's past offences have not been 'serious violence offences' as defined in the Act, with the only offence in that category being the attempted murder offence. However, Mr Ardasinski regarded the Defendant's past violence as approaching the threshold under s.5A of the Act, noting the 'sheer luck' involved in some of his victims not suffering serious harm. Mr Ardasinski provided examples to support this observation - the firebombing (at [28]-[30] above) could have resulted in harm to the occupants of the premises and the home invasion (at [26]-[27] above) at North Bondi could have resulted in a stabbing, presumably had the man's partner not intervened. Mr Ardasinski considered that the Defendant posed a risk of committing a serious violence offence in the community. 55 Mr Ardasinski noted that the Defendant had completed the Violent Offenders Therapeutic Programme ('VOTP') in 2014 and 2015. This is a high-intensity treatment program for violent offending. However, Mr Ardasinski expressed the opinion that the Defendant had not retained what he had learned in the VOTP. Despite completing his treatment, he threatened another inmate with a knife in his workplace in 2016. Mr Ardasinski considered that the Defendant required further VOTP maintenance sessions, and that he should participate as well in educational and vocational programs. It was noted by Mr Ardasinski that all of those programs are offered in the community. 56 Mr Ardasinski referred to the Defendant's mental state and considered that ongoing management of his personality disorder and mental health would be critical to any risk assessment. The Defendant had reported that he had started hearing voices in the past year, and appeared to be taking antidepressant and antipsychotic medication. Whilst noting that there was no consensus as to the primary diagnosis with respect to the Defendant, Mr Ardasinski noted that it appeared to be a severe personality disorder. The psychologist noted the Defendant's recent acts of self-harm in custody and, that they had jeopardised a possible placement in a particular halfway house in the community.'
A significant volume of psychiatric evidence concerning the condition and treatment of the Defendant since December 2016 is before the Court at this final hearing.
On 21 December 2016, Dr Gerald Chew, consultant psychiatrist with Justice Health and Forensic Mental Health Network, prepared a report for the State Parole Authority. Whilst noting that there had been a difference of opinion between psychiatrists in the past as to whether, in addition to his severe mixed personality disorder, the Defendant has a psychotic illness, Dr Chew reported that a "primary psychotic disorder like schizophrenia seems likely and needs to be further assessed and managed" (page 8). Dr Chew noted that the Defendant reported continuing to hear voices, telling Dr Chew that on occasions the voices told him to do things, in particular to harm himself and that he was at times unable to resist (page 7). Dr Chew expressed the view that the Defendant was not ready for discharge to a community setting. If the Defendant was to be released from custody, he would have to be scheduled to the local mental health unit and only after a period of stability in an inpatient unit could the Defendant be transferred to the COSP with the support of a CTO. Dr Chew considered that the Defendant had a number of risk factors, primarily a risk to himself and also to others (page 9). Dr Chew considered that the Defendant should be commenced on Clozapine for his schizophrenia.
A supplementary prelease report dated 18 January 2017 by Community Corrections (addressed to the State Parole Authority) noted that the Defendant had been transferred from the mainstream prison to Long Bay Hospital by order under s.55 Mental Health (Forensic Provisions) Act 1990 on 6 January 2017. The Defendant had agreed to take Clozapine. Affidavits of Dr Matthew Hearps, the Treating Psychiatrist
Dr Hearps has sworn affidavits dated 21 March 2017 and 10 May 2017. Dr Hearps is the Deputy Clinical Director of the Forensic and Long Bay Hospitals and is the Defendant's treating psychiatrist.
In his affidavit dated 21 March 2017, Dr Hearps described the treatment which has been given to the Defendant since his admission to the mental health unit of the Long Bay Hospital on 6 January 2017. Dr Hearps had diagnosed the Defendant as suffering from schizophrenia and major depression. He was being treated for the acute phase of an established psychotic illness characterised by hallucinations.
Dr Hearps expressed the opinion that the Defendant required treatment in a secure venue such as the mental health unit of the Long Bay Hospital for the purpose of treatment and monitoring. Once the Defendant's illness was sufficiently stabilised, Dr Hearps considered that the Defendant would require intensive psychiatric rehabilitation and noted that the mental health unit of the Long Bay Hospital was not equipped to provide such service. He stated that the Forensic Hospital is equipped to provide both acute care and psychiatric rehabilitative services. Whilst other psychiatric facilities are similarly equipped from a clinical perspective, Dr Hearps considered that only the Forensic Hospital provided a sufficiently secure venue for the treatment of the Defendant given the risk of harm which he poses to both himself and members of the community.
Dr Hearps referred to the NSW Forensic Patient Flow Committee (of which he is a member) which has considered the Defendant's case since 16 January 2017.
Dr Hearps noted that the Forensic Hospital Admissions Committee had considered the Defendant's case on 27 February 2017. That Committee noted the expert forensic psychiatric recommendation for the admission of the Defendant to a high security care facility within the Forensic Hospital. The minutes of the Forensic Hospital Admissions Committee for 27 February 2017 noted (aptly) that the Defendant was a patient in a "legal limbo".
Dr Hearps expressed the opinion that the eventual placement of the Defendant at the Forensic Hospital was "clinically appropriate". He outlined a process where the Defendant's detention at the Long Bay Hospital may come to an end, with him being transported to the Prince of Wales Hospital for assessment as to whether he was a mentally ill or mentally disordered person under the Mental Health Act 2007 so as to warrant his involuntary detention in a mental health facility. If the Defendant was so assessed, and a bed was available at the Forensic Hospital, Dr Hearps noted that the Defendant could be transferred from the Prince of Wales Hospital to the Forensic Hospital subject to the Mental Health Act 2007 (paragraphs 29-32).
In his affidavit dated 10 May 2017, Dr Hearps stated that the Defendant continued to be treated at the Long Bay Hospital. His dosage of Clozapine had been reduced since March 2017. The Defendant had reported to Dr Hearps that his mood had improved, although he still presented with instability in his mood. There had been no episodes of self-harming behaviour or threats of self-harm since Dr Hearps' first affidavit.
Dr Hearps considered that the Defendant was still in the acute phase of care and that he required another two-to-four months of acute care in a venue such as the mental health unit of the Long Bay Hospital for the purpose of treatment and monitoring. Dr Hearps endorsed the further treatment recommended in his first affidavit. Evidence of Dr Adrian Keller Concerning the Forensic Hospital
Dr Adrian Keller, the Clinical Director of the Forensic and Long Bay Hospitals, affirmed an affidavit on 23 March 2017 and gave evidence as well at the final hearing.
Dr Keller described the Forensic Hospital as a high secure forensic mental health facility with 135 beds. The Forensic Hospital admits forensic patients, as well as correctional patients and a smaller number of "high risk civil patients" requiring the highest level of security that can be afforded by a mental health facility in New South Wales.
Dr Keller described the structure of the Forensic Hospital and its different units. In the context of the Defendant's case, Dr Keller stated that a patient being transferred from the Long Bay Hospital to the Forensic Hospital is likely to remain in the acute admission unit (the Bronte Unit) for several months before being considered appropriate for possible transfer to the sub-acute care unit (the Clovelly Unit). There is no prescribed period during which a patient should remain at each Unit before progressing to the next with the factors relevant to the decision of the treating team to seek transfer including stabilisation of the patient's psychiatric condition, a sustained reduction in the dynamic risk of harm to self and others and demonstrated a capacity to participate effectively in a rehabilitation program.
Dr Keller described the potential pathway for a high risk civil patient (as the Defendant would be) whose condition improves sufficiently to warrant being transferred into a less restrictive environment than the Forensic Hospital, with placement being likely at a mental health facility in the patient's local area if considered appropriate. Dr Keller referred to medium-secure units which are able to provide specialist forensic psychiatric care and are focused on rehabilitation with a view to progressing patients, through the use of increasing community leave, to live in supported accommodation in the community. There are three such units in New South Wales - the Macquarie Unit at Bloomfield Hospital, the Bunya Unit at Cumberland Hospital and the Kestrel Unit at Morisset Hospital.
Dr Keller referred as well to the recent establishment of the Castlereagh Unit, a rehabilitation unit based at Bloomfield Hospital in Orange. This Unit has state-wide responsibilities for high risk civil patients, including those "stepping down" from the Forensic Hospital to a less secure facility. A pathway for a high risk civil patient detained at the Forensic Hospital may be to transition to the Castlereagh Unit for a period of time, before further transfer to a local health district or a community placement.
Dr Keller has not met with nor assessed the Defendant. However, he has obtained a detailed understanding of the Defendant's case from his discussions with Dr Hearps.
Dr Keller considers that the Defendant's eventual placement at the Forensic Hospital is clinically appropriate. The timing of his transfer to the Forensic Hospital is dependent upon his clinical needs and his legal status. Dr Keller referred to a priority waiting list for admissions to the Forensic Hospital which currently includes some 30 forensic patients. These are persons who have been found not guilty of an offence by reason of mental illness or have been subjected to a limiting term and are additionally considered to require care and treatment in a high secure mental health facility.
Dr Keller confirmed, however, that patients outside of that class can be admitted to the Forensic Hospital on a case-by-case basis. He noted that whilst treatment for the Defendant's acute phase of his psychotic illness can be appropriately provided in the Long Bay Hospital or in the Forensic Hospital, once that phase of treatment is completed, the Defendant would ideally be placed in a hospital where he could undertake a psychiatric rehabilitation program with access to a full range of allied health professionals working within a multi-disciplinary team. The Forensic Hospital is the only high secure facility which provides such services.
Dr Keller observed that the Forensic Hospital is not a "correctional centre" under the Crimes (Administration of Sentences) Act 1999. Accordingly, Dr Keller understood (correctly) that the Defendant could not be committed to the Forensic Hospital under a CDO (see [132]-[133] below).
Dr Keller gave evidence concerning the timing of any potential transfer of the Defendant to the Forensic Hospital and the length of time which may be required before that could take place. He explained the long-term nature of patient stays at the Forensic Hospital (paragraph 8, affidavit, 23 March 2017; T14, 24 May 2017).
It was the evidence of Dr Keller that the NSW Forensic Patient Flow Committee and the Forensic Hospital Admissions Committee would take into account the duration of a CDO which the Court may order in seeking to allocate a bed to the Defendant in the Forensic Hospital. Whilst there are significant competing demands for others (who are forensic patients) to enter the Forensic Hospital, the particular needs of the Defendant would be taken into account as well in considering his placement.
Dr Keller observed that a recommendation from the Court with respect to placement of the Defendant in the Forensic Hospital would carry significant weight (T13-14, 24 May 2017).
The Defendant is one of about 30 persons in a pool awaiting placement in the Forensic Hospital. As described by Dr Keller, this is not a structured and inflexible waiting list based on chronological priority. Rather, the relevant Committees have a capacity to allocate a bed when there is a vacancy based upon an assessment of the particular case (T15-16, 24 May 2017).
Although the Long Bay Hospital is well suited to provide acute care, but not rehabilitative care, Dr Keller stated that the Defendant would continue to receive appropriate psychiatric treatment in the Long Bay Hospital if he remained there for a period waiting for a vacancy to occur in the Forensic Hospital (T16-17, 24 May 2017).
Mr White asked Dr Keller concerning the steps which would be required to see the Defendant leave the Long Bay Hospital and ultimately be admitted to the Forensic Hospital (T17-18, 24 May 2017): "Q. Finally doctor, just in terms of the process from when he leaves Long Bay Hospital, before he is admitted to the Forensic Hospital, he needs to be scheduled, and as I understand it, probably to Prince of Wales Hospital. Is it your understanding that he then has to go before the Mental Health Review Tribunal before being transferred to the Forensic Hospital, or can he be transferred independently of that? A. My understanding, and based on having done it previously, is that he would need to be scheduled from custody to Prince of Wales Hospital, where he would then need to be assessed by two doctors at Prince of Wales, one of whom would need to be a psychiatrist. That would then consolidate his status as an assessable patient under the Mental Health Act. He could then, as I understand it, be transferred from Prince of Wales back to the Forensic Hospital prior to a Mental Health Inquiry taking place. So again, as I understand it, this could all happen within the space of a few hours if it was planned in advance and coordinated properly. It would not require Mr Windle to be detained overnight awaiting the Tribunal to conduct a hearing. Q. So are you able to then give some realistic estimate as to the period of time it would take from when he leaves the Long Bay Hospital until when he is admitted to the Forensic Hospital? A. Provided we had a clear date of expiry of the order, I'm assuming it would be a week day, not a weekend, and we had planned well in advance and we had coordinated it with Prince of Wales and their medical superintendent, and Corrective Services, and they were able to release Mr Windle in the morning, he was able to get to Prince of Wales, he was able to see their two doctors, including a psychiatrist, and transport was available to bring him back to the Forensic Hospital, I imagine all of that could be turned around in 4 to 6 hours."
The psychiatric evidence outlined above was not disputed at the final hearing. Both Dr Samuels and Dr Adams consider that the Defendant requires a prolonged period of psychiatric hospitalisation and rehabilitation. Both Court-appointed psychiatrists have expressed the opinion that there is a high risk of the Defendant committing serious violence offences if he is not hospitalised for a prolonged period. Both doctors express the opinion that a step-down period to a medium secure forensic unit would be appropriate with the use of an ESO, perhaps in conjunction with a CTO, when the time comes for the Defendant to return to the community.
Dr Hearps and Dr Keller (together with Dr Samuels and Dr Adams) state that the Forensic Hospital is the appropriate location for treatment of the Defendant when a position becomes available for him in that facility.
The Mental Health Review Tribunal reviewed the Defendant's case on 16 May 2017 for the purpose of s.59 Mental Health (Forensic Provisions) Act 1999. As I construe that Act, this was the only review which that Tribunal could undertake of the Defendant given that he is no longer a sentenced prisoner. The Tribunal determined that the Defendant should be detained at the Long Bay Hospital to receive care and treatment. The Tribunal's reasons recorded the treatment being afforded to the Defendant at the Long Bay Hospital by Dr Hearps and other staff.
In due course, I will draw together my conclusions with respect to the factual and legal circumstances of the Defendant, and the appropriate course to be taken to give effect to the objects of the High Risk Offenders Act in the context of his case.
Before doing so, I will refer to remaining statutory factors to be considered for the purpose of s.17 High Risk Offenders Act. Reports from Corrective Services NSW as to Management of the Defendant in the Community: s.17(4)(d1)
A risk management report dated 7 October 2016 was provided by Teresa Sartor, Senior Community Corrections Officer with Corrective Services NSW. This report provided a risk management plan should the Defendant be placed on an ESO.
Management of an ESO would include weekly face-to-face interviews, regular field visits, contact by his supervisors with third parties (mainly his treatment providers) to monitor progress, electronic monitoring and a schedule of movements, individual or group treatment sessions in the Violent Offenders Therapeutic Program ("VOTP") maintenance together with referral for mental health and personality disorder issues, a referral to alcohol and drug services, the carrying out of drug and alcohol testing and non-association requirements.
Ms Sartor noted limitations of the management strategy which had been devised prior to the Defendant's deterioration in his mental state.
Affidavits dated 10 February 2017 and 27 February 2017 of Karen Langdon were relied upon by the Plaintiff. Ms Langdon's affidavit of 10 February 2017 updated the position since Ms Sartor's report of 7 October 2016. Ms Langdon is employed by Corrective Services NSW as the Unit Leader of the ESO Team within the Community Compliance and Monitoring Group.
Ms Langdon outlined steps which have been taken with respect to the Defendant with the view to possible placement in the community. In light of the multiple difficulties surrounding the Defendant, including his significant psychiatric issues, Ms Langdon stated that it has not been possible to secure any suitable post-release accommodation for the Defendant.
The evidence reveals that Corrective Services NSW has made efforts to secure suitable post-release accommodation for the Defendant. The Nunyara COSP has indicated that the Defendant is no longer suitable for placement there on the basis that it does not have the facilities to meet the Defendant's mental health needs. At the current time, there is no community facility available that is suitable and willing to accommodate the Defendant in the event of his release.
The absence of any appropriate community placement for the Defendant at this time is to be considered together with the powerful body of evidence that the only appropriate placement for the Defendant for some time will be in a highly secure psychiatric treatment facility.
Ms Langdon's affidavit of 27 February 2017 explains the proposed conditions for an ESO, their rationale and how they would operate in the case of the Defendant. Treatment or Rehabilitation Programs: s.17(4)(e)
In State of New South Wales v Windle, I addressed this statutory factor by reference to the evidence at the preliminary hearing. I said at [61]-[65]: "61 As I have mentioned, the Defendant has participated in treatment programs during his time in custody, with the most significant being the VOTP. A treatment report dated 3 December 2015, following the Defendant's completion of VOTP, noted that throughout his participation in the program he had demonstrated greater impulse control and consequential thinking. The Defendant had identified strategies which he could use when he is experiencing emotional distress instead of harming himself or others. The Defendant had identified his cognitive distortions related to his violent offending, and determined appropriate and realistic alternative ways of thinking in order to reduce his risk of violent reactions. The report recommended follow-up support to assist him to maintain treatment gains. 62 The VOTP treatment report noted, in relation to the Defendant's risk of reoffending: 'Were Mr Windle to re-offend, his offence is likely to follow a period in which a decline in his mental health stability is observed, paranoid perceptions of mistreatment are experienced and he engages in rumination regarding his mistreatment, resulting in an aggressive and violent attack on his victim alongside possible acts of self-harm due to remorse or regret for his actions'. 63 Also before the Court are Corrective Services NSW case notes ('OIMS') which record instances, since completion of the VOTP, when the Defendant has reported trying to implement skills which he learned during that program to challenge negative thinking and to deal with frustration. However, the Defendant has been frustrated by a refusal of parole on 1 March 2016 and he self-harmed. There were other self-harm incidents on 4 April 2016, 10 May 2016 and 31 July 2016. 64 I noted earlier the comment by Mr Ardasinski that there were competing diagnoses expressed with respect to the Defendant. In March 2016, Dr Matthew Hearps expressed the view that the Defendant had schizophrenia. However, the most recent psychiatric report, from Dr Gordon Elliott of Justice Health dated 13 May 2016, involved a diagnosis of a severe mixed personality disorder of borderline and antisocial features. Dr Elliott disagreed with Dr Hearps' opinion that the Defendant had schizophrenia. Dr Elliott considered that the Defendant's self-harming and violent behaviour was part of entrenched features of his personality disorder, and were likely to appear unpredictably whenever he was stressed or at times of boredom or substance use. Dr Elliott considered that these features are likely to be resistant to psychological and pharmacological intervention. He considered that the Defendant's expressions of hearing voices were better accounted for as pseudohallucinations, commonly encountered in individuals with severe borderline and antisocial personality disorders. 65 Dr Elliott noted that, at the time of the Defendant's release from custody, he will require assertive supervision, including strictly supervised accommodation and ongoing monitoring of his mental state by clinicians familiar with his history."
It is necessary to read this part of my earlier judgment in conjunction with the detailed psychiatric evidence which is now before the Court from Drs Samuels, Adams, Hearps and Keller, together with the determination of the Mental Health Review Tribunal dated 16 May 2017. That evidence overtakes the position at the preliminary hearing and describes the treatment being provided to the Defendant and the course which is proposed to foster his ongoing treatment and rehabilitation. Compliance with Obligations on Parole: s.17(4)(f)
Once again, the position has not altered since the preliminary hearing with respect to this statutory factor. In State of New South Wales v Windle, I said at [67]-[69]: "67 The Defendant's experience by way of parole release has been as a juvenile only. His compliance with parole obligations in that respect has been poor. He was released to parole on 22 July 2007, but re-entered custody on 6 August 2008 on a warrant for breach of parole. He failed to report and travelled to Queensland and recommenced using amphetamines. 68 As mentioned earlier, a number of the offences referred to in this judgment were committed whilst the Defendant was on parole. 69 The Defendant has not been released to parole during his current sentence. The State Parole Authority ('SPA') determined not to grant parole on 2 August 2016, and again on 8 November 2016. As a result, the Defendant has had no experience under parole supervision as an adult." Safety of the Community: s.17(4)(a)
Everything that I have said so far by reference to the s.17 factors relates, directly or indirectly, to this primary and fundamentally important statutory factor.
I accept the Plaintiff's submission that the Defendant's history of violent offending, including unprovoked and impulsive violent acts, means that the safety of the community should be given considerable weight. Ensuring the safety and protection of the community is the primary object of the legislation: s.3(1) High Risk Offenders Act.

Conclusion Concerning s. 5G High Risk Offenders Act

Having considered the evidence adduced at the final hearing, I have already made a finding, to a high degree of probability, that the Defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision (see [27]-[34] above). The requirements of s.5E(2) have been met in this case. I note that no contrary submission was made on this aspect on behalf of the Defendant.
It is submitted for the Plaintiff that the opinions of both Dr Samuels and Dr Adams are that the Defendant presents a high risk of serious violent recidivism and should not be released to the community at this time. The independent expert opinion is that the Defendant's risk cannot be adequately managed by an ESO or by his involuntary detention under the Mental Health Act 2007 in a general psychiatric hospital at this time. I note that no contrary submission was made on behalf of the Defendant in this regard.
I am satisfied that adequate supervision will not be provided by an ESO in this case so that a CDO should be made in accordance with s.5G(1) High Risk Offenders Act. The evidence demonstrates clearly that neither an ESO nor involuntary detention under the Mental Health Act 2007 will provide adequate supervision in the case of the Defendant for the foreseeable future. In reaching this conclusion, I have had regard to the evidence and the legal principles to be applied for the purpose of a s.5G determination (see [36]-[39] above).
In undertaking this task, I have kept in mind the observations of Basten JA (Gleeson JA agreeing) in Bugmy v State of New South Wales at [4]-[8]. As his Honour there noted, a question may arise as to whether a person is best dealt with under the provisions of the High Risk Offenders Act or the provisions of the Mental Health Act 2007.
I have found that the Defendant is a "high risk violent offender": s.5E. I am satisfied that adequate supervision of the Defendant will not be provided by an ESO: s.5G. The medical evidence is that the Defendant is receiving treatment, and will continue to receive treatment, for his mental illnesses. It is necessary to accommodate the Defendant in a high security facility. Whilst under a CDO, that will be the Long Bay Hospital. The unanimous medical opinion is that civil detention of the Defendant under the Mental Health Act 2007 should occur, in the first instance, in the Forensic Hospital, the most secure mental health facility in the State. This approach reflects the level of risk which the Defendant poses to the safety of the community for the time being. In the unusual circumstances of this case, the way forward will involve a combination of measures under both the High Risk Offenders Act and the Mental Health Act 2007, all of which are intended to protect the community and foster the rehabilitation of the Defendant.
The next issue for determination is the duration of a CDO for the purpose of s.18 High Risk Offenders Act. This aspect involves consideration of some unusual features concerning the Defendant and his treatment needs, with these factors having a direct bearing on the length of a CDO under which the Defendant must be detained in a "correctional centre".
It was submitted for the Plaintiff that the CDO in this case should be for a period of 12 months. The Defendant submitted that the CDO should be for a period of four months.
In considering this issue, it must be kept in mind that, when a CDO is made, a warrant of committal to a correctional centre must issue for the purpose of s.20(1) High Risk Offenders Act. The Long Bay Hospital is proclaimed to be a "correctional centre' for the purpose of s.225 Crimes (Administration of Sentences) Act 1999.
The Forensic Hospital, however, is declared to be a "mental health facility" and a "mental health inpatient treatment" facility for the purpose of the Mental Health Act 2007. It is not a "correctional centre". As Dr Keller explained, the Forensic Hospital is operated by the Justice Health and Forensic Mental Health Network on behalf of the New South Wales Ministry of Health. The Forensic Hospital is not operated by Corrective Services NSW.
By Government Gazette dated 26 November 2008, the Forensic Hospital was declared to be a "mental health facility" and a "mental health inpatient treatment" facility. It was further declared, pursuant to s.109(1)(c) Mental Health Act 2007, that ss.18, 19, 20, 22, 24, 25 and 26 of the Mental Health Act 2007 shall not apply to the Forensic Hospital. Accordingly, not all forms of transfer to a "mental health facility" under the Mental Health Act 2007 are available with respect to the Forensic Hospital. This is understandable given the specialised (and unique) nature of the Forensic Hospital and the desire to avoid it being used for general mental health admissions.
As the Defendant was a sentenced prisoner up to 28 February 2017, he was not at any time a "forensic patient": s.42 Mental Health (Forensic Provisions) Act 1990. To the extent that the Defendant became a "correctional patient" on 6 January 2017 upon his transfer to the Long Bay Hospital under s.55 Mental Health (Forensic Provisions) Act 1990, he ceased to be a "correctional patient" when his sentence expired on 28 February 2017: s.64(b) Mental Health (Forensic Provisions) Act 1990.
Since 28 February 2017, the Defendant has been a detainee held in a "correctional centre" (Long Bay Hospital) by warrant issued under the High Risk Offenders Act. Whilst he is subject to a CDO, the Defendant is an "inmate" for the purpose of s.4(1)(c1) Crimes (Administration of Sentences) Act 1999. Part 2 of that Act would apply to him so that transfer to a hospital under s.24 Crimes (Administration of Sentences) Act 1999 would be available, at least, until the CDO expired or was revoked.
As a matter of law, a person who is subject to a CDO can be held only in a correctional centre. For a person who is not a "forensic patient" or a "correctional patient", such as the Defendant, admission to the Forensic Hospital can only be achieved under the Mental Health Act 2007. Accordingly, the Defendant cannot be transferred to the Forensic Hospital whilst a CDO remains on foot. He could only be transferred to the Forensic Hospital if an order for involuntary admission was made under the Mental Health Act 2007 immediately after the CDO had expired or had been revoked by order of this Court under s.19 High Risk Offenders Act.
It is in this unusual context that the Court is called upon to fix an appropriate term for a CDO with respect to the Defendant.
I have determined that a CDO should be fixed as the requirements of s.5G have been met in this case. However, the CDO will be made upon the basis that the Defendant will remain in the mental health unit of the Long Bay Hospital (a "correctional centre") until there is a vacancy for him in the Forensic Hospital. The difficulty which confronted the parties and the Court at the final hearing was the uncertainty as to when this time may come about.
I have concluded that the period sought by the Plaintiff for a CDO is too long and that proposed by the Defendant is too short.
I will make a recommendation as foreshadowed during the evidence of Dr Keller (see [102] above). However, there can be no safe prediction as to when a bed will become available for the Defendant in the Forensic Hospital.
It is understandable that there is a great demand for beds in the Forensic Hospital. This facility provides an exceptional and valuable service to the community of New South Wales. It plays a critical role in connection with the administration of criminal justice and the State's mental health system. The observations which I made in R v MJR [2010] NSWSC 653 at [47] (not long after the Forensic Hospital had opened) have been reinforced by the experience of the Courts of the excellent work done by the Forensic Hospital since that time.
There are significant competing demands for a place in the Forensic Hospital from others who are forensic patients with their own particular needs. The Court should have confidence in the approach of Dr Keller and other members of the relevant Committees with respect to the provision of a place to become available to the Defendant in the Forensic Hospital. The evidence of Dr Keller supports the view that appropriate steps will be taken to reach this point as soon as it is reasonably possible. The Court cannot insist upon more than that being done in this case.
Having regard to the evidence of Dr Keller, I was satisfied that a period of no longer than eight months from 26 May 2017 will be required for a place to become available for the Defendant in the Forensic Hospital. There is, in my view, a real prospect that a period of more than four months will be required before this can occur.
The High Risk Offenders Act provides for a further element of flexibility in the present circumstances. Section 19(1) enables the Court to revoke a CDO on the application of the State or the offender. Section 19(1B) states that, without limiting the grounds for revocation of a CDO, the Court may revoke a CDO if satisfied that circumstances have changed sufficiently to render the order unnecessary.
The affidavit of Jonathan Vasiliou sworn 19 May 2017 records an undertaking by the Plaintiff to apply under s.19 to vary or revoke any CDO upon notification by the Forensic Patient Flow Committee or the Forensic Hospital Admissions Committee of a bed becoming available for the Defendant at the Forensic Hospital. It is the expectation of the Court that the Plaintiff will monitor the position in this respect, so that proactive enquiries will be made to ensure that reasonable notice can be given of a vacancy in the Forensic Hospital so as to allow an application to be made under s.19 for revocation of the CDO. As I indicated during the hearing, it may be appropriate for such an application to be made to me in the first instance (if I am available) to facilitate the making of any necessary order.
I set out hereunder what I expect to be the way forward with respect to the CDO affecting the Defendant.
The CDO made on 26 May 2017 for a period of eight months will operate to detain the Defendant in the Long Bay Hospital for that period unless the CDO is revoked at an earlier time. On the evidence adduced at the final hearing, it is expected that a bed will become available for the Defendant at the Forensic Hospital in a period less than (and perhaps significantly less than) the term of eight months. The Plaintiff will monitor the position in this respect and keep the Defendant's legal representatives aware of the position during the period of the CDO.
When the Plaintiff receives notice that a bed is to become available in the Forensic Hospital for the Defendant, then the parties will have leave to approach the Court by way of Notice of Motion seeking to revoke the CDO under s.19(1) from a specified date, upon the basis that the changed circumstances will render the CDO unnecessary.
Upon the revocation of the CDO, it is expected that the relevant authorities will be in a position to transfer the Defendant to a declared mental health facility under s.25 Mental Health Act 2007 which provides: "25 Detention after transfer from another health facility (1) A person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person. (2) Any such person is taken to have been detained in the declared mental health facility under section 19 when the person is transferred to the facility."
Because s.25 Mental Health Act 2007 is declared to not apply to the Forensic Hospital (see [133] above), the Defendant cannot be transferred to the Forensic Hospital from Long Bay Hospital under s.25. However, s.25 allows a transfer from Long Bay Hospital to a declared mental health facility (that is, other than the Forensic Hospital), such as the Prince of Wales Hospital. The term "health facility" is not defined in the Mental Health Act 2007, but I proceed upon the basis that it includes the Long Bay Hospital.
Section 27 Mental Health Act 2007 sets out the "steps [that] must be taken in relation to a person who is detained in a mental health facility under this Division". The steps include examinations by medical practitioners, following which the Mental Health Review Tribunal holds a mental health inquiry under s.35 Mental Health Act 2007.
Under s.35(5) Mental Health Act 2007, the Tribunal may make any of the following orders if satisfied that the person is a mentally ill person: "(a) an order that the person be discharged into the care of a designated carer or the principal care provider of the person, (b) a community treatment order, (c) an order that the person be detained in or admitted to and detained in a specified mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Tribunal is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection."
The terms of s.80 Mental Health Act 2007 should also be noted: "80 Transfer of patients to or from mental health facilities(cf 1990 Act, s 78) (1) An involuntary patient or a person detained in a mental health facility may be transferred from the mental health facility to another mental health facility or another health facility. (2) A person who is a patient in a health facility other than a mental health facility may be transferred from the health facility to a declared mental health facility for the purpose of detaining the person under Part 2 of Chapter 3. Note. Section 25 sets out the procedure for detaining such a person in a declared mental health facility. (3) A transfer of a patient or person to a health facility other than a mental health facility may be made on the grounds that the patient or person requires medical treatment for a condition or illness (other than a mental illness or other mental condition). (4) A transfer under this section is to be done in accordance with an arrangement between medical officers of each facility or an order in writing by the Secretary. (5) An arrangement under this section is sufficient authority for the transfer of a patient or person, and the reception into, the mental health facility or other health facility to which the patient or person is transferred."
I accept the Plaintiff's submission that, following the Defendant's release from the Long Bay Hospital, he could come to be detained in the Forensic Hospital by one or other of the following routes: 1. an order of the Mental Health Review Tribunal under s.35(5) Mental Health Act 2007 following his transfer to a declared mental health facility (such as Prince of Wales Hospital) from Long Bay Hospital; or 2. by transfer under s.80 Mental Health Act 2007 if (as I accept) he is a "person detained" or an "involuntary patient" and therefore detained on an ongoing basis as is appropriate under the provisions of the Mental Health Act 2007.
What I have described would constitute the legal pathway for the process described by Dr Keller where, in a matter of hours, he would expect that the Defendant could be released from the Long Bay Hospital and taken to the Prince of Wales Hospital for assessment, leading to transfer to and admission at the Forensic Hospital under the Mental Health Act 2007 (see [105] above). In this way, the Defendant would cease to be a detainee under a CDO and would be a patient subject to civil detention under the Mental Health Act 2007 whereby he could be housed in and treated at the Forensic Hospital.
As I have said, I am satisfied that a CDO of eight months' duration should constitute the absolute outer limit for these steps to be taken with the expectation, based upon the evidence given at the final hearing, that this effective transfer to the Forensic Hospital will be able to take place in a period significantly less than eight months.

Should an ESO be Made to Operate at the Expiration of the CDO?

The next question which arises for consideration is the Plaintiff's application for an ESO in addition to the CDO.
The Plaintiff sought an ESO with respect to the Defendant to take effect at the expiration of the CDO. A period of six months was sought in this respect, noting that the operation of the ESO would be suspended whilst the Defendant was in lawful custody under any other law by operation of s.10(1A) and (2) and s.25B High Risk Offenders Act. In support of this application, the Plaintiff pointed to the evidence of Dr Samuels and Dr Adams with respect to the need for the Defendant to be subject to an ESO at the time when he was returning to the community, perhaps in conjunction with a CTO. Reliance was placed upon the medical evidence that a CTO only would not be adequate.
It was submitted for the Defendant that there was no power to order an ESO in this case given amendments which had been made to the Plaintiff's initiating process. Alternatively, it was submitted that, if there was power to order an ESO, such an order should not be made in this case given the likely time in the future when such an order would come into effect and the capacity of a CTO to provide sufficient supervision of the Defendant as he returned to the community. Can an ESO be Made in this Case?
The Plaintiff filed its original Summons on 29 November 2016 where the final relief being sought was an ESO for a period of three years. The Plaintiff filed an Amended Summons on 2 February 2017. The application made there was for a CDO for a period of 12 months and, in the alternative, an application for an ESO for a period of five years. The original claim for relief (an ESO for three years) was deleted in the Amended Summons. A Further Amended Summons was filed in Court on 24 May 2017 with application being made for a CDO for a period of 12 months and for an ESO for a period of six months to expire at the expiration of the CDO or its earlier revocation by the Court.
Mr White submitted that the application for an ESO for six months was a fresh application and not a variation of the original application for an ESO for three years which had been withdrawn in February 2017. It was submitted that, in these circumstances, the Plaintiff could not demonstrate that the Defendant was a "supervised violent offender" for the purpose of s.5J(2) High Risk Offenders Act, in that he was not serving a sentence of imprisonment or subject to an existing ESO or CDO at the time when what was said to be a fresh application was made on the filing of the Further Amended Summons. By that time (24 May 2017), it was submitted that the Defendant was subject to a high risk violent offender interim CDO, but that status was not such as to bring him within the definition of a "supervised violent offender" in s.5J(2).
Ms Wright submitted that the alteration in the Plaintiff's claim for relief in this case arose from the Defendant's altered and deteriorating mental state. The original claim for an ESO was amended to one for a CDO with an alternative claim for an ESO and then finally a CDO followed by an ESO. It was submitted that the Plaintiff had, at all times, an application on foot for an ESO (however expressed) so that s.5J(2) was satisfied by the filing of the Summons and the Amended Summons, both of which occurred whilst the Defendant was serving a sentence of imprisonment. The amendment in the Further Amended Summons did not involve a type of de novo or fresh step so that the Court should disregard the earlier applications for ESOs. It was submitted that the deletion of the original claim for an ESO for three years in the Amended Summons did not have the effect of altering, in any relevant fashion, the Plaintiff's claim for relief.
Ms Wright noted that s.25B allows the Court to make an ESO at the same time as it makes a CDO, with an ESO commencing on the expiration of the CDO, and that is the relief which the Plaintiff finally sought in this case. Amending the application did not fall foul of s.5J given the history of the proceedings. It was submitted that it was immaterial that, as things have developed, the Plaintiff has amended its application to address the change of circumstances arising from the Defendant's mental condition.
Ms Wright noted that a person fell within the definition of a "supervised violent offender" under s.5J(2)(b) when the application for an order is made whilst a person is in custody or under supervision pursuant to an existing ESO or CDO. It was submitted that it would be open to the Plaintiff, whilst the Defendant is subject to the CDO, to make application for an ESO of the type now sought. If that path was taken, however, it would be necessary for the Court to undertake a preliminary hearing before moving to a final hearing if the matters to be established at the preliminary hearing had been made good.
Counsel submitted that the capacity for an application for an ESO to be brought in this way operated against a strict construction of s.5J which would (on the Defendant's argument) shut the Plaintiff out from the application for an ESO presently advanced. It was submitted that this would be inconsistent with the statutory purpose to be found in s.5J(2)(b) and s.25B High Risk Offenders Act, which allows the Court to make what are effectively consecutive orders by way of CDO and ESO.
I accept the Plaintiff's submissions on this issue. I am satisfied that the Plaintiff has had on foot, at all relevant times, an application for an ESO with respect to the Defendant. The fact that the application has taken different forms as a result of the amendments made flowing from the Defendant's mental health difficulties does not operate to close the door so as to prevent the Plaintiff bringing the application for an ESO to follow the CDO. To adopt the construction advanced by the Defendant would, in my view, not advance the sensible construction of the legislation. An examination of s.5J and s.25B reflects a measure of flexibility in the operation of the legislation.
I am satisfied that it is open to the Court to make an ESO at the same time as the CDO with the ESO to operate at the expiration of the CDO. Should an ESO be Made in this Case?
It was submitted for the Plaintiff that the medical evidence pointed to the strong desirability of an ESO structure to be in place for a relatively short period at the time when the Defendant comes to return to the community. Particular reliance was placed in this regard upon the evidence of Dr Samuels and Dr Adams.
The Plaintiff submitted that the Defendant's complex psychiatric condition and the significant risks of serious violent offending demonstrated in the evidence would require a limited period of intensive supervision under an ESO, perhaps in conjunction with a CTO. It was submitted that the medical evidence indicated that a CTO alone would not be adequate for this purpose.
Mr White submitted that the uncertainty of the time period during which the Defendant would be receiving inpatient psychiatric treatment was such that it was difficult to estimate when any ESO would take effect. It was submitted that this would likely be at a time when the Defendant would be released under a CTO and that such an order would be sufficient to address any relevant risks in relation to the commission of a "serious violence offence" so that a further ESO would not be necessary.
I am satisfied that the medical evidence establishes clear and deep-seated psychiatric issues surrounding the Defendant including a personality disorder and (more recently) a psychotic condition. The Defendant is presently engaged in the acute treatment phase for his psychosis. Apart from that, there are long-standing difficulties referred to in the evidence which constituted the foundation for the initial application brought to this Court.
By the time the Defendant is considered for release into the community, he would have been detained by way of imprisonment, a CDO and involuntary detention under the Mental Health Act 2007 since 2009. I accept that there are difficulties at this point in time in identifying when any ESO would commence to operate.
However, the medical evidence indicates deep-seated and long-lasting issues which bear directly upon the risk of the Defendant committing further serious violence offences in the community unless adequately supervised. On the evidence adduced at the final hearing, a CTO would prove inadequate on its own to serve the purposes of protection of the community.
I am well satisfied that an ESO ought be made for a period of six months from the expiration of the CDO. If it happened to be the case that the Defendant's circumstances have changed sufficiently to render the ESO unnecessary when the time comes, then application could be made to the Court to revoke the ESO under s.13(1) High Risk Offenders Act.
For the purpose of s.17(1)(a) and s.25B, I am satisfied that an ESO for a period of six months ought be made to commence at the expiration of the CDO in this case.
I have considered the conditions sought by the Plaintiff as part of the proposed ESO together with the affidavit of Ms Langdon which explains those conditions and the purposes they are intended to achieve. For the purpose of s.11 High Risk Offenders Act, I express my satisfaction that the conditions sought by the Plaintiff are appropriate and I will set those conditions as part of the ESO. Suspension of the ESO Whilst the Defendant is in Lawful Custody
There is a further aspect of the Plaintiff's application which I should address. Section 10 High Risk Offenders Act provides as follows: "10 Term of extended supervision order (1) An extended supervision order commences when it is made, or when the offender's current custody or supervision expires, whichever is the later. (1A) An extended supervision order expires at the end of: (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. (2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law. (3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender."
Section 25B provides: "25B Orders may be made at same time (1) Nothing in this Act prevents the Supreme Court from making an extended supervision order in respect of a person at the same time that it makes a continuing detention order in respect of the person. (2) In such a case, despite section 10 (1), the extended supervision order commences on the expiry of the continuing detention order and expires: (a) at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended."
It can be seen in s.10(1A)(b) and (2) and s.25B(2)(b) that the operation of an ESO will be suspended whilst the person "is in lawful custody whether under this or any other Act or law".
The practical context in which this issue arises is that, when the Defendant's CDO expires or is revoked, the ESO will commence to operate unless suspended by operation of s.10 High Risk Offenders Act. It is expected that the Defendant will be detained in the Forensic Hospital under the Mental Health Act 2007, and perhaps in some other mental health facility, for a period of time before the ESO would commence to operate.
Ms Wright submitted that the Defendant's detention under the Mental Health Act 2007 would constitute "lawful custody" for the purpose of s.10(2) so as to suspend the operation of the ESO during such detention. This construction has been accepted in this Court: State of New South Wales v Cornwall [2015] NSWSC 742 at [46] (Beech-Jones J); State of New South Wales v Cruse (No. 2) [2014] NSWSC 128 at [122] (Davies J) and State of New South Wales v Boatswain [2014] NSWSC 1446 at [114] (Davies J).
I accept that a person detained in a mental health facility under the Mental Health Act 2007 is "in lawful custody … under … any other Act or law".
The term "lawful custody" is not defined in the High Risk Offenders Act. The term "custody" is not to be narrowly confined: Eatts v Dawson (1990) 21 FCR 166 at 178-9. It is clear that involuntary detention under mental health legislation may be sufficient to found a writ of habeas corpus: Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377 at 376-380 [99]-[113], 395 [196]; White v Local Health Authority [2015] NSWSC 417 at [78]. The concept of "lawful custody" is not confined to custody or detention for penal or punitive purposes. Involuntary detention in cases of mental illness is non-punitive in character: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64 at 28 [24]; Re Woolley; Ex parte Applicants M276/2003 [2004] 225 CLR 1; [2004] HCA 49 at 24-25 [58].
I accept the Plaintiff's submission that, whilst the Mental Health Act 2007 uses the terminology of "detain" and "detention", the concept of involuntary detention involves "custody" given the restraint on liberty which flows from the authority to detain conferred by law. An involuntary patient under the Mental Health Act 2007 is given into the custody of the mental health facility and is not free to leave. This approach is supported by the decision of the Court of Appeal in Graham v State of New South Wales [1989] NSWCA 89.
Accordingly, I accept that any detention of the Defendant under the Mental Health Act 2007 will constitute lawful custody so as to suspend the operation of the ESO for the period of such lawful custody. In making orders on 26 May 2017, I utilised the approach adopted by Davies J in State of New South Wales v Cruse (No. 2) at [122] and State of New South Wales v Boatswain at [114] by including a notation (in Order 5) concerning the way in which s.10(2) High Risk Offenders Act would operate in the circumstances of the present case.
It was for these reasons that I made an ESO for a period of six months to commence on expiration of the CDO subject to the operation of s.10 High Risk Offenders Act.

Conclusion

In accordance with the Court's intention as stated to Dr Keller during his evidence, I recommend to the Forensic Patient Flow Committee and the Forensic Hospital Admissions Committee that favourable consideration be given to the priority of admission of the Defendant into the Forensic Hospital for his continuing psychiatric treatment.
To give effect to this recommendation and to assist the relevant Committees, I will have my Associate forward a copy of this judgment to each of these Committees (and to Dr Keller and Dr Hearps).
In addition, I consider it appropriate to provide a copy of the judgment to the Mental Health Review Tribunal given its past involvement with the Defendant and the prospect that the Defendant may come within the jurisdiction of that Tribunal at some time in the future.
It was for these reasons that I made the following orders on 26 May 2017 including the conditions of the ESO as set out as an annexure to this judgment. The Court: "1. Orders that pursuant to s.17(1)(b) of the Crimes (High Risk Offenders) Act 2006 ("the Act") the Defendant be subject to a high risk violent offender continuing detention order for a period of eight months from 26 May 2017. 2. Orders that pursuant to ss.17(1)(a) and 25B of the Act, the Defendant be subject to a high risk violent offender extended supervision order for a period of six months commencing immediately upon the expiration of the high risk violent offender continuing detention order referred to in Order 1 or its earlier revocation by the Court. 3. Orders that pursuant to s.11 of the Act, for the period of the high risk violent offender extended supervision order referred to in Order 2, the Defendant is directed to comply with the conditions set out in the Schedule to this Order (see below). 4. Orders that pursuant to s.20(1) of the Act, a warrant issue for the committal of the Defendant to a correctional centre for the purpose of Order 1. 5. Notes that: a. Pursuant to s.10(2) of the Act, the Defendant's obligations under the high risk violent offender extended supervision order in Orders 2 and 3 are suspended while the Defendant is in lawful custody whether under this or any other Act or law. b. Lawful custody for the purposes of s.10(2) of the Act may include detention as an involuntary patient in a mental health facility under the Mental Health Act 2007, or escorted leave from any such facility, at least in circumstances where the Defendant's freedom is directly controlled and limited. 6. Grants liberty to apply on two days' notice."

Windle Annexure (60.9 KB, doc) 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: 08 June 2017

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Judgment (12 paragraphs)

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Cases Cited (22)

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