The State of New South Wales v Cornwall

Supreme Court of NSW|2015-06-11|Before: Beech-Jones J

ex tempore Judgment (revised from transcript)

On 5 June 2015 the State of New South Wales (the "State") filed a summons seeking various orders under the Crimes (High Risk Offenders) Act 2006 ("the Act") against the defendant Raymond Barry Cornwall. Mr Cornwall is a convicted sex offender. As I will explain, he is serving a sentence of imprisonment that expires on 13 June 2015.
The principal relief sought by the State is a continuing detention order ("CDO") whose intended effect will be the imprisonment of Mr Cornwall for a period beyond the expiry of his current sentence. As there was no prospect of a final hearing of the proceedings being completed in the seven days between the commencement of the proceedings and the expiry of Mr Cornwall's sentence, the State also sought an interim detention order against Mr Cornwall. Further, the State also seeks an order appointing two psychiatrists to examine him, a form of order that is contemplated by s 7(4) of the Act.
The hearing of the State's application for these latter two orders was fixed for 11 June 2015 before me. The late timing of the application has imposed considerable constraints on the Court and the legal representatives for Mr Cornwall in responding to it. As a consequence, these reasons are less fulsome than they otherwise would be, especially having regard to the somewhat novel issues that arise concerning Mr Cornwall's status under the Mental Health (Forensic Provisions) Act 1990 and the Mental Health Act 2007.

Background

Mr Cornwall was born in 1955. He is presently sixty years of age. In 1975 he was convicted of indecent exposure and fined. Between 1972 and June 1986 he accumulated a number of criminal convictions, none of which involved crimes of violence or were of a sexual nature. They were mainly driving offences.
On 6 December 1993, Mr Cornwall was sentenced by the District Court to a number of terms of imprisonment, which ultimately totalled 14 years, commencing 8 July 1993 and expiring 7 July 2007. The various non-parole periods that were imposed totalled 10 years. The terms of imprisonment were imposed in respect of seven offences which related to five vicious and violent sexual assaults inflicted on women between 13 June 1991 and 1 July 1993. Four of the five victims were 18 years or younger. The other victim was 24 years old.
Mr Cornwall was not released on parole. Further, prior to the expiry of his total head sentence, an interim detention order was made under the Act in 2007.
On 28 September 2007 Hall J made a continuing detention order in respect of Mr Cornwall for a period of eight months (Attorney-General for New South Wales v Cornwall [2007] NSWSC 1082). However, on 19 December 2007 the Court of Appeal allowed an appeal from his Honour's decision and substituted a five-year ESO for the continuing detention order. That ESO included a number of conditions (see Cornwall v Attorney-General for New South Wales [2007] NSWCA 374).
Shortly after the Court's judgment, Mr Cornwall was released. However, almost immediately, he breached the conditions of his ESO. In particular, on or about 21 December 2007 Mr Cornwall was charged with failing to comply with his ESO. He had absconded from his authorised residence and removed his electronic monitoring device. He was located at a beach by a police officer. He was reported to have told the police that he felt that the conditions that were imposed upon him were similar to constraints he had experienced in prison, and he was also reported as saying he wanted to commit suicide.
On 15 January 2008 Mr Cornwall was convicted and sentenced to 15 months' imprisonment, with a non-parole period of nine months, for the offence of breaching the conditions of his ESO. Mr Cornwall was released again on his ESO when his sentence expired on 20 March 2009.
On 24 September 2009 Mr Cornwall was charged with three counts of failing to comply with his ESO. Apparently, Mr Cornwall had been granted permission to spend a day at his sister's residence. He did not leave at the arranged time but instead left at a later time. He was found at a nearby property. He was attempting suicide. He had consumed alcohol.
On 2 October 2009 Mr Cornwall was convicted and sentenced to a term of imprisonment of 20 months, with a non-parole period of 15 months, for the offences of breaching his ESO. He served the entire period of that sentence in custody.
Prior to the expiry of that sentence, Mr Cornwall was charged with a number of offences arising out of a violent sexual attack upon a woman in 1989. He pleaded guilty to those offences. On 14 December 2011 he was sentenced in the District Court to four years and six months' imprisonment, with a non-parole period of three years and four months, commencing 14 December 2010. Mr Cornwall was not released at the end of the non-parole period that was imposed. It is that sentence which is due to expire this Saturday, 13 June 2015.
Some time around November 2014 officers within Corrective Services commenced preparing a transitional plan for Mr Cornwall in anticipation of a forthcoming parole hearing and his release at the expiry of his sentence. According to a psychologist employed by Corrective Services, Ms Donaldson, these plans did not develop because Mr Cornwall ceased taking his antidepressant medication and was otherwise continually placed in the acute crisis management unit of the gaol.
Throughout early 2015 Mr Cornwall's mental condition deteriorated. On 21 April 2015 a psychiatrist Dr Sue Morgans diagnosed Mr Cornwall with a major depressive disorder with melancholic features. Apparently, he was refusing treatment for depression. It was considered that he was at risk of suicide. Mr Cornwall was transferred to the Long Bay mental health facility on 28 April 2015. He has remained there since that time and is currently under the care of a psychiatrist Dr Reznik. I address the legal basis for his detention at the Long Bay mental health facility and the evidence of Dr Reznik below.

Risk Assessment Report and Risk Management Report

The statutory provisions noted above refer to the supporting documentation accompanying the State's application. One such piece of documentation is a report referred to in s 6(3)(b) of the Act, namely, a report prepared by, inter alia, a registered psychologist that assesses the likelihood of the offender committing a further serious sex offence. Such a report was provided with the State's application. This report, described as a risk assessment report, was prepared by Ms Donaldson, who is a senior psychologist in the Sex & Violent Offender Therapeutic Program. It was co-signed by the Director of the "Offender Services and Programs" section. The report is dated 29 May 2015. It is comprehensive and incorporates a useful summary of a great deal of relevant material up to that time.
Four matters should be noted about the report. First, the report described Mr Cornwall's participation in various rehabilitation programs for sexual offenders from time to time. In early 2008 he participated in a 14-week motivational program designed to prepare offenders to participate in a sex offenders treatment program. Between April 2008 and December 2008 he participated in the custody-based intensive treatment "CUBIT" program. His participation at the time was described as "consistently positive". One part of the risk assessment report notes that Mr Cornwall himself identified a pattern relating to his offending of him suffering from "depressive symptoms such as hopelessness, loss of interest, reduced self-esteem". The State placed significant emphasis on the existence of a link between him suffering those symptoms and the potential for the commission of offences. The risk assessment report describes his participation in programs, or rather his lack of participation, after he returned to custody in 2009. It seems that Mr Cornwall declined a reference to a program for "custody-based maintenance" and has not done any programs since. In her oral evidence, Ms Donaldson was generally concerned by the lack of progress on this front on the part of Mr Cornwall since his return to custody in late 2009.
Second, since at least 2007 Mr Cornwall has been consistently diagnosed as having a personality disorder with "avoidant and antisocial traits", as well as being depressed. He has also been assessed as "having met the diagnostic criteria for paedophilia", and this was said to be evident in his displays of voyeurism, exhibitionism and fetishism when he had the opportunity. A consistent aspect of psychiatric presentation has been his suicidal ideations. I have already referred to the recent diagnosis of a major depressive disorder and his general mental deterioration since early 2015.
Third, as is to be expected, the authors of the risk assessment report made an assessment of Mr Cornwall's risk of re-offending. The executive summary includes the following: "Based on the current risk assessment, Mr Cornwall is considered a moderate-high risk of sexual re-offending relative to other men who have sexually offended. Mr Cornwall has a history of paraphilic interests, including voyeurism and exhibitionism; however, denies any current sexual preoccupation or interest. He experiences ongoing negative emotions and responds with an avoidant coping style resulting in withdrawal, isolation and disengagement from supervision. Mr Cornwall has no social supports in custody or the community. Mr Cornwall has not sexually offended in 22 years; however, his ability to manage risk in the community remains largely untested, having spent only six months in the community under supervision."
Fourth, as hinted at in this part of the executive summary, the risk assessment report reveals that there is little by way of available support for Mr Cornwall if he was released into the community. The report notes that there is well-documented evidence that Mr Cornwall plans to commit suicide on his release. In an interview, Mr Cornwall stated he wanted to live in his own accommodation and was only willing to reside in a Community Offender Support Program ("COSP") facility if he was allowed to look for somewhere else to live. The risk assessment report noted that, if Mr Cornwall was released, he would be subject to the conditions of the ESO imposed by the Court of Appeal until 19 December 2019, but noted that he had difficulty complying with those orders in the past.
On 2 June 2015 a senior community corrections officer, Mr Kevin Makar, prepared a risk management report concerning Mr Cornwall. Mr Makar met with Mr Cornwall in February 2015. At that time Mr Cornwall was unable to nominate any prospective community contacts. Mr Makar records that on 9 March 2015 the manager of the COSP program advised that: "… no-one is admitted [to a COSP facility] from an Acute Crisis Management Unit however if Mr Cornwall could get to a cell placement outside of the Acute Crisis Management Unit and show continuing stability for '6 to 8 weeks' an application would be considered."
As at March 2015 Mr Cornwall was being detained in an acute crisis management unit. However, as I have indicated, since then the position has worsened and he has been detained in a mental health facility at Long Bay.
The only other possible source of accommodation that has been identified is via the "Extended Reintegration Service" provided by the "Community Restorative Centre". Even though a referral was sent to that service on 21 April 2015, the earliest available date for an assessment of Mr Cornwall's eligibility was 11 June 2015. The hearing of this application was adjourned to allow Mr Cornwall to participate in the assessment. Its outcome is unknown. It appears that, if Mr Cornwall is accepted, he will be the first person accepted by that program who is subject to orders under the Act. In any event, it was not suggested that this application should be addressed on the basis that there is any realistic likelihood that such accommodation may become available in the short-term future.
In oral evidence Mr Makar told the Court that Corrective Services is able to arrange emergency accommodation on an ad hoc basis. He explained that this was short-term accommodation in a hotel or backpacker's hostel. Given Mr Cornwall's history, this form of accommodation appears to be an unsuitable one other than as a short-term stop gap between a period where he is, say, released from a prison and is due to enter some closely supervised accommodation.

Mr Cornwall's Detention since April 2015

As noted, in April 2015 Mr Cornwall was transferred to the mental health facility at Long Bay. This was a consequence of an order being made by the Director-General of the Department of Corrective Services under s 55(1) of the Mental Health (Forensic Provisions) Act 1990 (the "MHFPA"). Its effect was to render Mr Cornwall a "correctional patient" within the meaning of s 41(1) of the MHFPA. His status as a correctional patient engaged an obligation on the part of the Mental Health Review Tribunal ("MHRT") to review his status (MHFPA ss 58 to 59). As part of that review, the MHRT is required to assess whether Mr Cornwall is a "mentally ill person" within the meaning of the Mental Health Act 2007 (MHFPA s 59 (2)).
One difficulty in the application of these provisions to this matter arises from the operation of s 64 of the MHFPA, which provides: "64 Termination of classification as correctional patient A correctional patient ceases to be a correctional patient if any of the following events occurs: (a) the person is transferred to a correctional centre or other place from the mental health facility, (b) the person's sentence of imprisonment expires, (c) the person is ordered to be released on parole, (d) the person is otherwise released on the order of a court, (e) the relevant charges against the person are dismissed, (f) the Director of Public Prosecutions notifies the court or the Tribunal that the person will not be further proceeded against in respect of the relevant charges."
Section 66 of the MHFPA provides that a person who ceases to be a "correctional patient" must be discharged from a mental health facility in which they are being detained, subject to the circumstance that the MHRT has determined that they are an "involuntary patient" within the meaning of the Mental Health Act 2007. Absent that occurring, the effect of s 64 is that upon the expiry of Mr Cornwall's sentence on 13 June 2015 he will cease to be a "correctional patient".
One matter that was debated at the hearing of this application was whether that result would be affected if the Court makes an IDO. Counsel for the State, Mr Hammond, submitted that an IDO would constitute a "sentence of imprisonment" for the purposes of s 64(b) of the MHFPA. I doubt that is correct, in that nothing in the making of an IDO appears to involve the imposition of a "sentence". However, it is not necessary to decide this finally because, if an IDO was made and Mr Cornwall was returned to a correctional centre, the Director-General could nevertheless then re-exercise the power conferred by s 55(1) of the MHFPA to transfer Mr Cornwall to a mental health facility. This is so because in those circumstances he would clearly be a person "imprisoned in a correctional centre". Thus, one way or another, the making of an IDO is likely to lead to Mr Cornwall being detained at the Long Bay mental health centre for the immediate future, assuming his mental condition does not improve.
What is the position if no IDO is made in respect of Mr Cornwall? Dr Reznik told the Court that, if no IDO is made, he would issue a medical certificate under s 19 of the Mental Health Act 2007 ("MHA"), recording that Mr Cornwall is a "mentally ill person", and arrange for him to be transferred to the mental health facility at the Prince of Wales Hospital. He said that he would also ensure that a package of information was supplied to the hospital, addressing Mr Cornwall's circumstances. The taking of those steps would then engage the process in s 27 of the MHA for the review of such a certificate and, depending on the outcome, lead to an inquiry by the MHRT under Division 3 of Part 2 of the MHA. The overall effect of these provisions is that Mr Cornwall would only be released if it was either determined that he was not a "mentally ill person" or if he was released by an exercise of the various powers conferred by the Act, particularly those referred to in ss 41 to 43 of the MHA.
A "mentally ill person" is defined by s 14 of the MHA to be a person who is: "… suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm."
Section 41 confers a power to discharge a mentally ill person upon the making of a community treatment order. Dr Reznik stated that, in his experience, such orders are not made unless suitable accommodation is made available. Section 43 of the MHA is irrelevant for present purposes. Section 42 confers a power on the authorised medical officer to allow a discharge of a mentally ill person on their application.

Assessment

As I have indicated, the respective submissions of the parties did not really focus upon whether Mr Cornwall is a high risk sex offender but instead were addressed to whether he could be adequately supervised by reference to his detention under the MHA and, failing that, under an ESO, such that an IDO should not be made.
The essence of the State's submission in support of the making of an IDO is that, the absence of suitable accommodation for Mr Cornwall, means that he cannot be adequately supervised under the ESO. Mr Hammond pointed to his history of noncompliance with the ESO, his history of suicidal ideations and the deterioration of his mental health over recent months. Mr Hammond submitted there is a clear connection between his depressed state and the potential for Mr Cornwall to re-offend. Mr Hammond contended that, if supervised accommodation is not available for Mr Cornwall, then the risk of his re-offending rises to a level that is clearly unacceptable.
Counsel for Mr Cornwall, Mr Johnston, contended that the material relied on by the State does not establish that Mr Cornwall poses an unacceptable risk of committing a further serious offence if he is not supervised. He submitted that, while it could be accepted that Mr Cornwall might pose a risk of committing suicide, he does not pose a risk of harm to others. He pointed out that Mr Cornwall has not committed an offence involving sexual violence, or indeed any violence, for 22 years. He contended that the breaches of the ESO were associated with self-harm and did not evince any intention on the part of Mr Cornwall to harm others. He submitted the State's approach means that Mr Cornwall faces the prospect of a significant period in custody after the expiry of his sentence because, on its approach, no suitable accommodation was likely to be available until Mr Cornwall, firstly, left the mental health facility and presumably went to an acute care management unit, secondly, moved from an acute care management unit to mainstream gaol and then, thirdly, displayed what was described as sufficient "stability" to allow him to be released.
Were it not for the arrangements that have been put in place to admit Mr Cornwall as an involuntary patient, I would make an IDO. It is true that Mr Cornwall's primary antisocial motivation appears to be to kill himself. However, in his case that is still indicative of him being in a state that is unacceptably similar to that which appears to have prevailed between 1989 and 1993. In the absence of a suitable form of supervised accommodation becoming available, the current ESO does not adequately guard against the risk he poses in his present mental state.
However, as the evidence has emerged, a form of accommodation appears to be available, namely, involuntary detention at the Prince of Wales Hospital. The evidence of Dr Reznik reveals that if an IDO is made, Mr Cornwall is likely to remain at the Long Bay mental health facility, but that if no IDO is made then it seems likely he will be detained under the MHA at the Prince of Wales Hospital. His detention under the MHA will suspend the operation of the ESO because he will at that point be in "lawful custody". Nevertheless his detention would provide protection against the risk that Mr Cornwall poses. Strictly speaking, the position then would not be a choice between supervision under an ESO and under an IDO, but there would still subsist a proper discretionary basis to decline to make an order under s 18A. Thus, in essence, at this point the choice is between detention in gaol and detention as an involuntary patient. The approach in Davie would suggest that the latter is to be preferred, provided that the relevant risk is ameliorated.
Mr Hammond submitted that allowing Mr Cornwall to be detained under the provisions of the MHA has an attendant risk that he might be released, either perhaps on the basis of a determination that he is not a mentally ill person, or perhaps pursuant to the other provisions noted above.
I note two matters which ameliorate this concern.
First, there is no plausible basis for this Court to proceed other than on the premise that the relevant persons exercising power under the MHA will exercise their powers reasonably. Without traversing the provisions of the MHA in detail, there seems little in the material to suggest that there will not continue to be an assessment of Mr Cornwall as "mentally ill" or that he is otherwise suitable for discharge into the community. It is to be remembered that the premise of the State's argument as to why he should not be released is that he is in effect "mentally ill" and not suitable for the forms of accommodation that it has identified.
Second, if for some reason Mr Cornwall was to be released under the provisions of the MHA then he would no longer be in "lawful custody" and, on any view, his ESO would not then be suspended. In that event, the State would be able to issue him directions as to reporting and accommodation. Critically, if necessary, the State could then apply to this Court for an emergency detention order, if the circumstances so permit, or make a further application for an IDO. It must be remembered that, notwithstanding this is perhaps the most detailed application for an IDO that at least I have determined, it was nevertheless fixed for hearing and determined within five working days.
In the end result, the Court is faced with a choice of making an IDO or leaving Mr Cornwall to be dealt with as an involuntary patient under the MHA. In view of the matters just noted which guard against the risk posed by the release of Mr Cornwall, and having regard to the approach stated in Davie, the result is that I decline to make an IDO.

Orders

Accordingly, I will make orders appointing the psychiatrists to examine Mr Cornwall, but dismiss the application for an IDO. I will adjourn the proceedings to a date before a Registrar in two weeks and grant liberty to apply.
Accordingly, the Court orders: 1. That Dr Samson Roberts be appointed to conduct a psychiatric examination of the defendant and to furnish a report to the Supreme Court on the result of that examination on or before 20 July 2015. 2. That Dr Jeremy O'Dea be appointed to conduct a psychiatric examination of the defendant and to furnish a report to the Supreme Court on the result of that examination on or before 20 July 2015. 3. That the defendant take all steps reasonably available to him to make himself available to be examined by Dr Roberts and Dr O'Dea. 4. The proceedings be adjourned to 9am on 26 June 2015 before the Registrar for directions. 5. There be liberty to apply on 12 hours' notice. 6. The plaintiff's notice of motion filed 5 June 2015 be otherwise dismissed.

Amendments 17 June 2015 - Paragraph 45 amended by the substitution of "1993" for "1983". 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: 17 June 2015

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