State of NSW v DK

Supreme Court of NSW|2018-01-30|Before: Fullerton J

Judgment

HER HONOUR: By summons filed on 4 August 2017 the plaintiff, the State of New South Wales, sought orders for interim and final relief under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) with respect to the continued detention and extended supervision of the defendant, DK, as a high risk sex offender.

The current proceedings

On 2 November 2017, with DK's sentence due to expire on 21 November 2017, the Court made an interim detention order which was extended on 15 December 2017 and 12 January 2018 by consent (State of New South Wales v DK [2017] NSWSC 1848). The date for final hearing was fixed for 30 January 2018.
An amended summons was filed with leave at the final hearing. The amendments to the summons were presaged by submissions filed by the plaintiff consequent upon the passage of the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) effective from 6 December 2017. The savings and transitional provisions in Schedule 2 of the Act provide that the amendments apply to the current proceedings.

The evidence

The plaintiff relief upon the following affidavits: 1. Affidavit of Mr Jonathan Vasiliou, the solicitor with carriage of the matter for the plaintiff, dated 4 August 2017. 2. Affidavits of Ms Janelle Farroway, a High Risk Offender Applications and Operation Governance Officer of the Extended Supervision Order Team within Corrective Services NSW (CSNSW), dated 9 October 2017 and 29 January 2017. 3. Affidavit of Ms Olivia Munn, a senior psychologist employed by Statewide Disability Services (a unit of CSNSW), dated 9 October 2017. 4. Affidavit of Ms Holly Cieplucha, a Senior Psychologist in the Acute Crisis Management Unit (a unit of CSNSW) of the Metropolitan Special Programs Centre at Long Bay Correction Centre, dated 25 January 2018. 5. Affidavits of Dr Andrew Ellis, psychiatrist and Acting Clinical Director and Medical Superintendent of the Forensic and Long Bay Hospitals, dated 25 January 2018 and 29 January 2018. 6. Affidavit of Ms Kathy Saul, Manager of Statewide Disability Services NSW, dated 29 January 2018. 7. Affidavit of Ms Tracey Howe, a solicitor in the employ of the Crown Solicitor's Office, dated 30 January 2018.
Expert reports prepared by court appointed forensic psychiatrists Dr Martin and Dr O'Dea dated 18 December 2017 and 19 December 2017 respectively were also tendered.
Neither the authors of the expert reports nor the deponents to the affidavits were required for cross-examination.
It will be necessary in determining the plaintiff's application for DK's continued detention and extended supervision to give consideration to a range of matters provided for by s 17(4) of the Act, including those matters that bear most directly upon the likelihood of DK committing a further serious offence upon his eventual release from custody. It is appropriate however to note at this stage that the complexities in his psycho-social and clinical profile (the subject of detailed analysis in the expert evidence of the court appointed psychiatrists Dr Adam Martin and Dr Jeremy O'Dea) were evident in his behaviour, and ultimately his criminal behavior, from a very young age. The State of New South Wales, through various agencies, has responded with variable success to the treatment and management of DK's therapeutic needs, both as a young child before he entered into custody and throughout his adolescence as a serving prisoner in juvenile detention and, since 2016, in the adult correctional system.

The defendant's criminal profile and custodial history

DK was born on 7 January 1997 and is currently aged 21. Save for a period of weeks in 2016 when he was released to parole, he has been in continuous custody since he was 16.
He is currently housed in the Acute Crisis Management Unit (the ACMU) of the Metropolitan Special Programs Centre (MSPC) at Long Bay Correctional Centre (and has been since August 2017) due, in part, to his recurrent and deliberate self-harming behaviors.
The ACMU provides short-term crisis intervention for correctional centres when an inmate's risk of suicide and self-harm cannot be managed locally. The ACMU provides assessment, stabilisation, review and discharge management plans for an inmate's classification. The duration of admission to ACMU is ordinarily from three days to six months.
On 22 March 2013, DK was convicted in the Gosford District Court of eleven child sex offences committed against his twin stepsisters then aged nine. The offences, which included multiple counts of vaginal penetration, were committed over a period of ten months when DK was aged fourteen. He was sentenced to 4 years and 8 months with a non-parole period of 1 year and 8 months. This was his first and only engagement with the criminal justice system.
In his sentencing remarks Ellis DCJ noted a report from a clinical psychologist, prepared when DK was aged eight years and nine months, to the effect that the psychologist believed DK was himself the victim of sexual abuse as a child which corrupted his sexual development such that he became the perpetrator of abuse. The psychologist went on to note, as did his Honour, that at the time of sentence there had been no disclosure by DK that he had been abused as a child.
In October 2015 DK disclosed to a clinical nurse consultant associated with Justice Health that he had been the victim of sexual abuse as a child. This disclosure had a further destabilising effect upon his mental health, including what has developed into a pattern of chronic self-harm.
Various health professionals associated with Justice Health have reported upon DK's psychiatric and psychological health during the course of his detention as a juvenile.
Relevantly, for present purposes, in September 2014 he asked to be placed on medication to help him control his sexual preoccupation and urges and his fears of reoffending sexually upon his release to parole. He was first prescribed Sertraline which has been shown clinically to manage sexual preoccupation and sexual offending that is thought to be associated with impulsivity compulsion and altered mood states: he continued to experience intrusive deviant sexual thoughts whilst on that medication.
On 13 May 2015, after his 18th birthday and after he had been in juvenile detention for over two years, he commenced Androcur (cyproterone acetate, an anti-libidinal testosterone-lowering medication) under medical supervision.
In December 2015 he was transferred to the Austinmer Adolescent Unit Forensic Hospital pursuant to s 55 of the Mental Health (Forensic Provisions) Act 1990 (NSW) for assessment, treatment and management of the risk of self-harm and suicidal ideation.
In January 2016, in a report prepared to assist the Children's Court with a pending parole determination, DK was diagnosed in accordance with DSM-5 with the following psychiatric conditions: 1. persistent depressive disorder (in remission); 2. paedophilia disorder (responded to biological treatment in controlled environment); and 3. borderline personality disorder (responded to supportive containments).
Although DK was ultimately released to parole on 24 February 2016, his parole was revoked following his admission to the High Dependency Mental Health Unit at the Nepean Hospital in Penrith from where he was ultimately removed and returned to custody on 30 March 2016.
In recommending that DK's parole be revoked officers from Community Corrections reported that: 1. His accommodation appeared to be exacerbating his mental health issues placing him at a greater risk of homelessness; 2. All alternative accommodation options had been unsuccessful due to DK's mental health and the level of risk of his reoffending; 3. His supervision and engagement in services had been significantly hampered by his mental health which impeded his transition into the community; 4. His risk of reoffending appeared to be escalating despite engaging with Community Corrections and attempting to engage with community agencies for support (he reported to Community Corrections that he uses self-harm and experiences intrusive suicidal thoughts as a strategy to manage his self-reported ruminating sexual thoughts about children); and 5. Taking into account the complexity of DK's issues in the escalation of his self-harming behaviours, Community Corrections are unable to adequately manage his risk.
In short, it would appear that the Children's Court revoked parole on the basis that DK failed to comply with his obligations to adapt to community life.
Upon the revocation of his parole, DK was initially managed under the High Risk Assessment Team at the Junee Correctional Centre.
I note that DK informed Dr O'Dea that upon being returned to custody and whilst at Wagga Wagga police cells he tried to hang himself. He was transferred from Junee to the ACMU at Bathurst Correctional Centre before being transferred to Long Bay. On 17 May 2016 he was admitted to the ACMU at MSPC following repeated attempted self-strangulation at Bathurst and at MSPC. He was discharged from the Unit on 18 July 2016 but readmitted on 9 August 2017 where he remains to date.

Statutory criteria for the orders sought and the submissions of the parties

The plaintiff submitted that, on the evidence before it, the Court would be satisfied that the criteria in s 5C(a)-(d) for the making of the continuing detention order are met, and the criteria in s 5B(a)-(d) for the making of the extended supervision order are also met. Mr Coady of counsel, who appeared for DK at the hearing, did not submit to the contrary.
Having regard to the expert opinions of both Drs Martin and O'Dea in particular, Mr Coady accepted that the Court would be satisfied, to a high degree of probability, that DK does currently pose an unacceptable risk of committing another serious offence if not kept in detention - a concession he made on the stated basis that there is no evidence that appropriate supported community accommodation is available at this time which may have allowed for DK's extended supervision under court imposed conditions without the need for a continuing detention order. It was Mr Coady's further submission that because responsibility for that state of affairs must be sheeted home to the plaintiff, DK's continued detention should not exceed 6 months during which time suitable community accommodation to meet DK's complex therapeutic needs, including addressing and managing the risk of him reoffending, should be able to be secured.
Ms Anniwell of counsel, who appeared for the plaintiff, accepted that there was a failure on the plaintiff's part during the currency of the interim detention orders under which DK has been detained since 2 November 2017, to have him assessed for suitable accommodation in the community to meet his current needs, specifically a failure to properly assess him as a person with an intellectual disability and eligible for a particular level of support for that reason.
Mr Coady made the further concession that the Court would be well satisfied there is the same high degree of probability that DK poses an unacceptable risk of committing another serious offence if not kept under strict supervision once he is released from custody and, for that reason, neither the term of the extended supervision order nor the conditions to which DK will be subject are opposed.
Ms Anniwell submitted that while the plaintiff accepted that it might fairly be admonished for that failure, it does not warrant any lessening of the term of the 12-month continuing detention order it seeks when, with the best intentions of the plaintiff and the commitment of the various agencies that work in an integrated way to address the special accommodation needs of inmates with a similar criminal and clinical profile to that of DK, there is no certainty that appropriate accommodation will be secured within any shorter period. What Ms Anniwell proposed was that the plaintiff give an undertaking, through her instructing solicitor, that the plaintiff will make an application under s 19 of the Act to vary or revoke the 12-month continuing detention order upon notification that suitable accommodation in the community has become available.
It will be necessary to consider the competing submissions of the parties on this issue against the available evidence, concerned, as the Court must be, that in determining whether to make a continuing detention order or extended supervision order (including, as must be inferred, the term of any such order) the safety of the community is the paramount consideration (see s 17(2) of the Act).
With the ambit of the matters in dispute narrowed in this way, my findings as to the basis upon which the statutory criteria in ss 5C and 5I are met can be shortly stated as follows: 1. DK is an "offender" who has served a sentence of imprisonment for a "serious offence" in custody for the purposes of s 5C(a) and is a "supervised offender" for the purposes of s 5I(2)(a): 2. He is over 18 years of age and was sentenced to imprisonment to be served by way of full-time detention following his conviction for a "serious offence" thereby satisfying the definition of "offender" in s 4A of the Act. 3. He was convicted of (and served a sentence of imprisonment in custody for) 11 offences under Division 10 of Part 3 of the Crimes Act 1900 (NSW) where the offences were punishable by imprisonment for at least 7 years. The offences satisfy the definition of a "serious sex offence" (s 5(1)(a)(i) of the Act) and the definition of a "serious offence" in s 4(1)of the Act. 4. When the application for the continuing detention order and extended supervision order was made, DK was in custody while serving a sentence of imprisonment for a serious offence, thereby satisfying the definition of a "detained offender" in s 5C(b) and "supervised at that same time". 5. The application was brought in compliance with s 13B of the Act thereby meeting the requirement in s 5C(c). 6. I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept in detention as provided for in s 5C(d) and 5(I) and that there is a corresponding need for continuing supervision upon his release.
The non-exhaustive list of factors in s 17(4) of the Act provide the central framework according to which the plaintiff's application for a continuing detention order and an extended supervision order will be finally determined. I do not propose to address them individually save for my detailed consideration of the expert reports and other evidence bearing upon the issues in dispute. The statutory criteria have, however, been considered as reflected in the term of this judgment.

The reports of Drs Martin, O'Dea and Parker

In the reports dated 18 December 2017 (Dr Martin) and 19 December 2017 (Dr O'Dea), DK's psychiatric profile is addressed, together with the challenges his profile presents both in terms of an appropriate community placement and the structure of a regime for his extended supervision in the community to meet the high risk of him reoffending.
Both court appointed experts interviewed DK after the interim hearing in late 2017. They each endeavoured to take a detailed history from him whilst making observations of his presentation in interview and his self-reported attitudes and perceptions.
Dr Martin characterised DK's self-harming behaviour and frequent mood changes as "chronic and enduring problems ... of a severe nature" and "likely to persist for the foreseeable future". Dr Martin also noted that DK has problems with intimate and non-intimate relationships which manifested in behavioural difficulties extending back to childhood in the context of disrupted attachments and a highly dysfunctional upbringing.
Dr Martin reported that DK expressed a sense of hopelessness and ongoing suicidal thoughts throughout the interview with his thought content replete with themes of self-loathing. DK also reported sometimes hearing voices of command and of a derogatory nature talking to him, but he denied experiencing other common psychotic symptoms seen in major mental illnesses.
DK reported that he has been taking 200mg daily of Androcur, having been first prescribed the medication at the age of 18. He described his libido as "up and down". He told Dr Martin he masturbates twice per day and felt that the medication did not reduce his sex drive. He is also prescribed 800mg of Largactil daily (an antipsychotic sedative medication) and 100mg daily of Sertraline (an antidepressant).
Although DK gave no history of any significant or serious medical issues, he described minor surgical procedures to remove objects which he had deliberately inserted under the skin and a general anaesthetic to remove a pen which he inserted through his penis into his bladder.
DK told Dr Martin that he fantasised about young children and thought that he would reoffend sexually in the community. He volunteered that he could not control his thoughts or behavior and that were he in the community and he saw children he felt that he would become sexually aroused. He described feeling "pretty down" about his paedophilic interest and that his urges and thoughts made him feel suicidal. DK expressed a lack of confidence in his ability to control his actions and a preparedness to remain in custody for that reason.
Dr Martin and Dr O'Dea also reviewed a body of collateral information which extended over many years into DK's early childhood, including, most recently, a risk assessment report prepared by Dr Richard Parker (Serious Offenders Assessment Unit) dated 18 May 2017 at the request of the Commissioner of Corrective Services NSW in anticipation of what became the plaintiff's application under the Act for his continued detention at the expiration of his sentence.
In that report, Dr Parker addressed (as did each of the court appointed experts in December 2017) the risk of DK committing another serious sex offence if released from detention without supervision. Each of the experts, with differing degrees of emphasis and different analyses of DK's psychiatric profile, concluded that the risk of him reoffending was high.
Dr Martin reported that DK has a high load of historical risk factors which would not change dramatically over time. In particular, ongoing problems with tolerating stress and controlling his behaviour are described by Dr Martin as enduring problems for the foreseeable future, which contribute to his assessment of DK having on ongoing likelihood of reoffending. Dr Martin stated, from a clinical perspective, that DK is at high risk of reoffending sexually in the future. In coming to that view, Dr Martin noted that DK will likely have difficulty moderating his behaviour given that he has expressed ongoing paraphilic urges and fantasies together with having dysfunctional personality traits and maladaptive coping abilities.
In Dr Parker's view, DK's physical abuse, sexual abuse and neglect as a child resulted in him perpetrating sexually abusive acts on other children when he was six years of age, conduct which progressively left him socially isolated such that when he reached puberty his sexualised behaviour escalated, culminating in the sexual assaults on his stepsisters. Dr Parker noted that the early denial of his offending served to partly constrain the outward manifestations of his underlying shame, however, upon admitting his offending whilst in juvenile detention, and progressively revealing further offences against other children since that time, there has been an escalation of the repertoire of his self-harming behaviour and his suicidal ideation. These "shame driven behaviours" have, in Dr Parker's view, prevented DK from accessing offence-focused treatment within custody, further adding to the risk of his reoffending if released without supervision. Dr Parker expressed himself in the following way: He is assessed as being at high risk of committing further sexual offences. To reduce this risk, he will need to learn how to relate to other people in a manner that is mutually satisfying and respectful. However, he will be unable to do so while his emotional life is dominated by an extreme level of shame, which prevents him from trusting others and developing an appreciation of their needs. Unfortunately, shame promotes a level of self-centredness that precludes an awareness of others. Consequently, an extended period of therapy, with a stable group of skilled professionals is a prerequisite for any offence-focussed work. … … These shame-driven behaviours have prevented him from accessing offence-focussed treatment within custody. To overcome this obstacle, [DK] needs a stable placement, with ongoing psychological/psychiatric assistance from a consistent therapeutic team. This will enable him to build trust in these therapists, so he can address his shame. When this work has begun to have an impact, he can then begin to undertake treatment to address his own abusive behaviours.
Dr O'Dea's review of a number of reports spanning the course of DK's developmental history also confirmed Dr Parker's report of DK's overt displays of sexualised behaviour from a very young age. Unsurprisingly, in Dr O'Dea's view this was also associated with poor socialisation generally in the school environment which retarded his schoolwork, and dysfunction in the home environment of relatives in whose care he was placed after he was removed from his mother's care following the intervention of the Minister for Community Services in 2006. DK was eventually removed from the care of his relatives at age 13 after he was found to be downloading internet pornography and stealing underwear from his carers and other children into which he was masturbating.
Thereafter he was placed by the Minister with various Youth Services outlets where he was seen from time by a counsellor associated with Juvenile Justice. He did not receive specific psychiatric assessment or treatment at this time.
Notably, in a report of March 2006 prepared by Dr Selikowitz, a Consultant Developmental Paediatrician at the Sydney Developmental Clinic (also referred to in Dr O'Dea's report) DK was assessed in the mild range of intellectual disability with the proviso that the result should be interpreted with caution because of DK's oppositional behaviour during testing consistent with the diagnosis at that time of an oppositional defiant disorder.
Dr Martin also agreed with Dr Parker's analysis, reporting his further view that DK meets the diagnostic criteria for paedophilic disorder and borderline personality disorder. In Dr Martin's assessment, however, DK did not meet the diagnostic criteria for a major mental illness. In particular, he did not consider that he presented with an enduring major mood disorder such as major depression or bipolar disorder, although he displayed personality-based traits of mood instability and emotional dysregulation. That being the case, Dr Martin did not support the suggestion, at one time floated by the plaintiff, that DK be admitted to either the Forensic Hospital at Long Bay or a civilian mental health facility and detained under the Mental Health Act, although he accepted that DK may require short-term crisis admissions from time to time, either during his continued detention or under supervision, were he to decompensate under stress and become acutely suicidal as a result.
Dr O'Dea came to a different view. He considered that DK would satisfy the definition of a "mentally ill person" under the meaning of the Mental Health Act 2007 (NSW) based upon a specific and significant Paraphilia Disorder and a Persistent Depressive Disorder associated with deliberate self-harm and suicidal urges and behaviours such as to result in him requiring care, treatment or control for his own protection from serious harm. Dr O'Dea concluded as follows: 71. It is unlikely that psychological sex offender treatment programs alone, either in custody or in the community, will be sufficient to successfully treat [DK's] Paraphilic Disorder, and therefore have a significant and adequate impact on reducing [DK's] risk of engaging in further sex offending behaviours in the community in the long-term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006. 72. Rather, the judicious use of testosterone lowering (or anti-libidinal) medication (such as Cyproterone Acetate, Androcur or Medroxy Progesterone Acetate, Depo Provera), and ongoing psychotherapeutic interventions, focusing on support, supervision and monitoring, would be considered the most appropriate and effective therapeutic intervention to assist [DK] in treating his Pedophilic Disorder, and managing and minimising his risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006. 73. I note that [DK] has been prescribed Androcur, at a dose of 200mg daily, for the past 2 years, since the age of 18 years, for specific psychiatric treatment of his distressing Pedophilic Disorder, but has reported ongoing distressing paedophilic fantasies and urges whilst prescribed the medication. The response of testosterone lowering medication is dependent on a number of factors, including the extent of the reduction in a patient's testosterone levels, with the maximum recommended daily dose of Androcur being 300mg. Whilst I have not had access to [DK's] testosterone levels, his reported lack of adequate response may be due to a clinically insufficient dose of Androcur, resulting in an insufficient reduction in [DK's] testosterone levels. … 77. In addition to prescription of testosterone lowering medication, [DK] should take the opportunity in the community in the long term to explore in more detail, with a suitably qualified and experienced forensic psychiatrist, his overall sexuality in general, and his sex offending behaviours and sexual deviance in particular, in order to assist him to better manage his overall sexuality, and his bisexual paedophilia in particular, with the potential flow on effect of assisting him to better manage his moods and self harming behaviours. 78. In addition to treatment of his Paraphilic Disorder, and the potential beneficial impact of successful treatment of his Paraphilic Disorder on his moods and self harming behaviours, [DK] will require structured and supervised long term community management of his Depressive Disorder, Personality Disorder and self harm behaviours. 79. I note the problems with [DK's] community psychiatric management on his release on parole in February 2016, even after admission to the Forensic Hospital, and his ongoing psychiatric problems since his return to custody in March 2016. 80. Notwithstanding these problems, and on the basis that due to his current mental state, at the present time, from a psychiatric perspective, he would not be able to be safely managed in the general community, I would consider that [DK] should be admitted to a secure forensic psychiatric facility for a period of at least 3 months, in order to optimise treatment of his Paraphilic Disorder as above, stabilise his moods and self harm behaviours, and organise and implement a comprehensive and integrated community psychiatric treatment program, incorporating treatment of his Paraphilic, Depressive and Personality Disorders.
It was necessary to refer to Dr O'Dea's recommendations that DK be admitted to a secure facility as a forensic patient under the Mental Health Act as detailed above, despite the fact that the plaintiff reviewed its submitted position in advance of the final hearing and no longer sought an order for DK's detention under the Mental Health Act consistent with the order made by this Court in State of New South Wales v Windle (No. 3) [2017] NSWSC 727. The plaintiff apparently revised its position after accepting Dr Andrew Ellis's views, in his second report of 29 January 2018, that it would not be clinically appropriate for DK to be admitted into a Forensic Hospital at this time.
Dr Ellis gave evidence as follows: 3. Based on my personal assessment of [DK] today, review of this material and discussions with Dr Kasinathan, I am of the view that it would not be clinically appropriate for [DK] to be placed in the Forensic Hospital. He does not currently present with any symptoms of mood disturbance, delusions, hallucinations or thought disorder. He did not present with, nor did staff report any repeated or bizarre behaviour that could be attributed to symptoms of mental illness as defined in the Mental Health Act 2007. He has not engaged in self-injurious behaviour for over one month. He is compliant with all treatment and custodial direction. He indicates he will continue to engage with voluntary psychiatric care offered to him either in or out of custody. 4. I note he remains under the care of Dr Gerald Chew, Forensic Psychiatrist who has diagnosed [DK] with paedophilia, borderline personality disorder and attention deficit hyperactivity disorder. [DK] is prescribed cyproterone acetate, atomoxetine, olanzapine and sertraline. This medication regime has been associated with an improvement in mood, self-report of sexual deviance and self-injurious behaviour. [DK] reports that although he experiences ongoing paedophilic fantasy his sex drive is reduced and he has no urges to act on the fantasy. He indicated he was likely facing new charges related to historical events, and was content to remain in custody at this point, or cooperate with authorities if released to the community. 5. In my view, the Mental Health review Tribunal is not likely to make an involuntary detention order in relation to [DK] on the basis that he does not present with symptoms of mental illness currently, in his current environment he is not presenting a serious risk of harm to himself or others and he is accepting voluntary psychiatric treatment which would be considered a less restrictive, safe and effective form of treatment at present. 6. His continuing condition may lead to a relapse and then status as a "mentally ill person". However participation in voluntary psychiatric treatment and monitoring in a custodial or community setting moderates this risk. As with all psychiatric patients, this presentation may change. However, the period of current stability indicates any change is not likely in the immediate timeframe.

DK's current custodial arrangements and future accommodation needs and their availability

During DK's current admission to the ACMU at MSPC, there have been 31 recorded incidents of deliberate self-harm, mostly involving superficial injury to DK's skin of his face, arms, legs and torso; head-banging; insertion of foreign objects into his body and the attempted self-strangulation using gaol clothing, modesty apparel and his hands. DK's most recent recorded incident of self-harm was on 3 January 2018. These behaviours fluctuate in regularity and intensity during periods of heightened stress. Stressors have been identified as including the current proceedings, uncertainty and fear surrounding his release into the community, intrusive and inappropriate sexual thoughts, rumination on his history of sexual offending and his reported history of trauma. Less frequently he has reported suicidal ideation with intent.
Importantly, although in relatively recent times, DK has reportedly improved in mood and has reported a reduction in intrusive and distressing thoughts following changes made to his psychiatric treatment regime (a clinical observation confirmed by Dr Ellis in his most recent review), inclusive of being less reliant on staff and external restraints to regulate his behaviour. His chronic history of deliberate self-harm is, however, thought to be at risk of being re-triggered by a number of stressors, including these proceedings, and he is likely to remain a chronic risk of self-harm in the foreseeable future. His treating psychologist at the ACMU indicates he may be discharged from the Unit if he is able to demonstrate a period of behavioural stability (that is, without engagement in deliberate self-harm) at the conclusion of the current proceedings, after which a graduated procedure will be developed to enable his safe and progressive transition to the Additional Support Unit (ASU).
Corrective Services NSW currently has three ASU which accommodate offenders who, because of their disability, require placement outside the mainstream correctional centre environment. Offenders housed in the ASU have complex needs and traditionally provide challenges the placement and management within the Corrections environment. The main aim of the Unit is to provide comprehensive assessment and appropriate programs to address offending behaviour for people with intellectual and cognitive impairment. Further, staff within the Unit liaise extensively with external service providers to ensure offenders have access to appropriate support services within their local community upon the release from custody.
In order for an offender to be considered for placement in the Unit, the following criteria apply: 1. The offender must be assessed as having an IQ below 80 or significant cognitive impairment secondary to an acquired brain injury which subsequently affects their day-to-day functioning; 2. The offender must be referred for consideration of placement and be suitable for placement, in particular so far as DK is concerned, the offender must not have active self-harm concerns.
I note that a cognitive assessment was conducted on 11 July 2016 at the ACMU at MSPC where DK was found to be functioning in the range of intellectual disability. A referral was thereafter submitted to Statewide Disability Services (SDS), a unit of Corrective Services NSW within the Department of Justice, and he was assessed as suitable for placement in the ASU. The evidence does not reveal whether that placement was ever followed up.
With DK's referral to the ASU a possibility in the near future, he has been reviewed weekly by his treating psychologist. She gave evidence that consultation regarding management strategies has also been sought from the Personality and Behavioural Disorders Service and SDS.
Ms Munn, a senior psychologist within the Department, gave evidence that SDS functions in a number of areas within Corrective Services including, so far as is relevant to these proceedings, the preparation of referrals to the Department of Family and Community Services, the National Disability Insurance Scheme, and other agencies. Her current role involves her managing a team of psychologists as well as being responsible for overseeing and supervising the development and implementation of appropriate psychological services for offenders who have an intellectual disability and/or cognitive impairment.
The Community Justice Program (CJP) is targeted to provide accommodation and support the people with an intellectual disability who have had contact with the criminal justice system such as to place themselves or others at serious risk of harm and who present a level of complexity that requires service beyond what Ageing Disability and Home Care (ADHC) might ordinarily be able to provide
She gave evidence that, based on information to which she currently has access, DK was deemed ineligible for ADHC in April 2015 as a result of conflicting information as to whether or not he had an intellectual disability. This was a reference to the report in April 2010 by Mr Peter Watt when DK was aged 13 where he was found to be functioning in the average range of intellectual ability and an assessment in April 2014 prepared when DK was in juvenile detention which placed him in the range of intellectual disability. Critically, so far as these proceedings are concerned, because SDS had been informed that DK was ineligible for ADHC Services in 2015 they did not pursue a referral to CJP when his release to parole was being considered in early 2016 or at any time after his return to custody, despite the assessment in July 2016 referred to above, until a few days before the final hearing.
In Ms Munn's affidavit she states that the test protocol for DK's various cognitive assessments "cannot be released due to issues related to maintaining test integrity". Be that as it may, her evidence is that on 3 October 2017 (that is, both before and after the interim hearing under the Act) SDS were made aware of the three assessments of DK's intellectual functioning, two of which would indicate he met the criteria for a CJP referral, but still no action was taken to engage their assistance in locating suitable accommodation.

Final submissions

In the plaintiff's final submissions, counsel submitted that correspondence between solicitor for the Crown Solicitor and CJP now establishes that:

On 29 January 2018 the CJP panel determined that DK satisfied the criteria for CJP;
DK is now eligible for a comprehensive assessment which will provide recommendations for suitable support and accommodation options, which will take approximately 4 weeks;
At the completion of the assessment, DK will be considered against vacancies in the CJP;
The National Disability Insurance Scheme (NDIS) will replace existing NSW Government funding for the CJP;
DK was approved by the National Disability Insurance Agency (NDIA) to commence an NDIS funding plan on 5 January 2018. That plan does not presently provide funding for accommodation;
Disability Services Australia has been identified as the Support Coordination service provider for DK. They will be required to obtain quotes for suitable accommodation for him and submit them to NDIA for approval; and
The NDIS rollout is due to be completed by 30 June 2018 and the availability for any waiting period for services under the CJP is currently unknown. Accordingly, CSNSW is unable to comment on the availability of CJP accommodation for DK during the transition to the NDIS.

On the basis of this further information, I accept Mr Coady's submission that while accommodation through the CJP is not guaranteed, it appears that the prospects of DK being suitably accommodated in the community are more than theoretically favourable.
In closing submissions, the plaintiff also noted that DK has authorised Corrective Services NSW to act on his behalf in relation to his application to Housing NSW for accommodation. Regrettably, the evidence reveals that the processing of that application has also been delayed for an unacceptably long period of months, since September 2017, by what appears to be either an administrative oversight or a miscommunication, but an inexcusable oversight nonetheless. In the result, since it is only in the last week, within days of the final hearing, that the necessary documentation has accompanied DK's application for assisted housing, there was no evidence before me as to the likely success of that application or, if successful, the period of time before accommodation might become available.

Findings and conclusions

Dr Martin's insights into the challenges that present for the maintenance and management of DK at this time and into the future are instructive as to the approach the Court might take to the terms of the final orders to be made on the plaintiff's application: From my perspective, [DK] presents with extremely challenging clinical needs and presents problems around the likelihood of both re-offending and risk to himself through self-harm. There is no immediate perfect therapeutic solution to these issues. [DK] was exposed to sustained and serious developmental trauma involving various types of abuse which have resulted in him having poor behavioural controls, emotional dysregulation, and a predisposition to abnormal and criminal sexual behaviour. He has a very low threshold for tolerating stress. He is at high risk of self-harm and suicide. He is at high risk of offending in the community. It seems there are very limited community resources available to ensure adequate supervision which might mitigate such risks. Risk of re-offending against children can obviously be eliminated by him remaining in gaol although this is clearly not an ideal situation for a person who has reached the end of their initial sentence, and who has a traumatic history leaving them psychologically vulnerable. In my opinion, he requires many years of skilled psychological treatment around the trauma issues. Ideally, this would be done in the community. The challenge will be ensuring appropriate supervision and accommodation in a manner which allows for adequate community protection. The obvious immediate and ongoing concern is that when [DK] is in the community, that it will be very difficult to ensure that re-offending cannot occur in some scenario, and very difficult to minimise the risk of him self-harming or dying by suicide. … With reference to my above comments, psychological issues associated with risk of re-offending are enduring and likely to be relevant for many years. If it is found by the court that his risk cannot be managed appropriately in the community, then in my opinion, this would reflect a lack of appropriate available accommodation facilities. If he were to be granted a continuing detention order and kept within prison, then in my view, it would be reasonable for this to be as brief a duration as possible in order for appropriate accommodation to be found where community safety can be maximised while trying to achieve a situation where he can have appropriate psychological treatment. In brief, prescription of psychotropic medications such as anti-depressants and mood-stabilising medication is likely to be helpful in regulating mood. I have commented on anti-libidinal treatment above and I would support this as a psychiatric treatment. In addition to medication, he would likely benefit from extensive psychotherapy in attempting to deal with his traumatic developmental history and maladaptive coping strategies.
Despite the state of the evidence as to the practical uncertainty of knowing when suitable accommodation will be provided for DK in the community, and recognising, as I do, that the high risk of him reoffending against children can obviously be eliminated entirely by his continued detention, I accept and give full weight to Dr Martin's observations that this is clearly not an ideal situation for a young man who has served the entirety of his initial sentence and who has a traumatic history, rendering him psychologically vulnerable to stressors in a custodial setting. I am also conscious of the risk, if not the reality, that DK is already institutionalised which will become intransigent if his transition to the community is not confronted and managed without delay. I would only add that his vulnerability generally must be more acutely experienced by him given what has been recently identified as an intellectual disability underlying a range of chronic and entrenched dysfunctional behaviours.
It would seem, on a fair reading of the evidence from a range of informed perspectives, that there is no therapeutic value or likely clinical improvement in DK's psychiatric state by his continued detention, and that close supervision in a community setting under a strict management and therapeutic regime is not only likely to improve his prospects of a successful transition from an institutional custodial setting but, all importantly, reduce the risk of his further serious offending.
Where the only contested issue before me is the length of time that DK should remain in custody awaiting the availability of a suitable community placement (it being accepted by him, through his counsel, that an extended supervision order of 4 years is warranted, indeed, it would seem, even welcomed), I propose to order his continued detention for the minimum period of time I can reasonably anticipate it will take for the plaintiff to locate suitable community-based accommodation. It will be necessary for the plaintiff to undertake that task with appropriate priority and focused attention in order to ensure strict compliance with the orders of the Court. In my view, there is a far greater incentive for integrated cooperation by the various institutional stakeholders if that period is specified as 6 months and not the 12 months proposed by the plaintiff.

Orders

Accordingly, I make the following orders: 1. Pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (the Act), the defendant is subject to a continuing detention order for a period of 6 months from 2 February 2018. 2. Pursuant to ss 5B and 17(1)(a) of the Act, the defendant is subject to an extended supervision order for a period of 4 years to commence at the expiration of the continuing detention order. 3. Pursuant to s 11 of the Act, the defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in the schedule of conditions annexed to these orders.

Amendments 11 April 2018 - [2] - medium neutral citation added 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: 11 April 2018

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

At a glance

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