Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v Doolan BHT Thompson (No 4) (Final) [2021] NSWSC 541 Hearing dates: 30 April 2021 Decision date: 17 May 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) Pursuant to the provisions of s 127 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant's status as a forensic patient is extended for a period of 18 months from the date of this order; (2) Access to the file in respect of these proceedings is restricted and may only be granted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party's application for access and the parties have been afforded an opportunity to be heard. Catchwords: MENTAL HEALTH – forensic patient – application for extension of status as forensic patient – unacceptable risk posed by defendant – question whether less restrictive means available that could manage risk – unavailability of less restrictive means to be proved with high degree of probability – possibility but still high degree – more time on conditional release may raise real possibility – extension granted for short duration Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122, 123, 124, 126, 127, 128, 132 Cases Cited: Attorney General of NSW v Doolan [2015] NSWSC 1773 Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 3) (Preliminary) [2021] NSWSC 57 Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 Category: Principal judgment Parties: Attorney General of New South Wales (Plaintiff) Bevan Charles Doolan by his tutor Jennifer Thompson (Defendant) Representation: Counsel: H Atkin (Plaintiff) L Jardim (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2020/344255 Judgment 1. HIS HONOUR: By Summons, filed 3 December 2020, the plaintiff, the Attorney General of New South Wales (hereinafter "Attorney General"), sought orders under the Mental Health (Forensic Provisions) Act 1990 (NSW). The original Summons was replaced by an Amended Summons, filed in Court on 30 April 2021, which, as one of its alterations, seeks orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (hereinafter "the Act") that replaced the earlier legislation. 2. On 10 February 2021, Hoeben CJ at CL issued interim orders appointing two qualified psychiatrists and/or psychologists to conduct examinations of the defendant; requiring the defendant to attend those examinations; subjecting the defendant to an Interim extension order that expires on 21 May 2021; and appointing the tutor in these proceedings. 3. The examination has occurred and the reports, arising from those examinations, are now before the Court. The Court as presently constituted is required to deal with the making of an application for an extension order, extending the defendant as a forensic patient, not being an interim application or interim order. 4. The Amended Summons seeks an order pursuant to s 127 of the Act extending the defendant's status as a forensic patient for a period of 3 years from the date of the order. The Attorney General relies upon the Affidavit of Ms Lucy Nichols, affirmed 3 December 2020, and the Exhibit (Exhibit LN-1) to that Affidavit together with the later Affidavit of Ms Nichols, affirmed 16 April 2021. The Reports, consequent upon the examination to which reference has already been made, have been written by Dr Anthony Samuels and Dr Satish Dayalan, each of whom is a psychiatrist and each of whom examined the defendant. Background 1. The defendant is a 39-year-old Kamilaroi man who has been diagnosed with treatment-resistant schizophrenia; a neurocognitive disorder; substance use disorder; and anti-social personality traits/disorder. 2. The defendant has a long criminal history, which commenced when he was a juvenile, as a consequence of which he was subject to control orders and community orders, from the age of 13. His adult criminal history involves property charges with convictions including larceny; a number of break and enter offences; and offences for goods in custody and shoplifting. The foregoing excludes his index offences and offences of a sexual nature. It is necessary to recite some of that offending. 3. In April 2010, the defendant faced charges of threatening conduct of a sexual nature: stalking/intimidating, committing an act of indecency; and behaving in an offensive manner in a public place. This arose out of the defendant following a woman and her 11-month-old daughter to their unit in Waterloo; removing his pants; and masturbating in the corridor outside the unit. The woman called the police who attended and arrested the defendant. 4. The defendant was also subject to a limiting term between 27 June 2011 and 26 June 2012. That was for the offence of stealing from a dwelling, committed on 24 March 2010, however, the offence was sexual in context. 5. A woman woke at 4:30 AM to see the defendant, naked, in her lounge room. When first seen, the lounge room light was turned on, but the defendant turned the light off. When the woman turned on her bedroom light, the defendant was standing approximately 1½ feet from the woman, holding a large knife above his head in a threatening manner. The conversation occurred in the following terms: "Complainant: What do you want? Defendant: I want to have a baby with you." 1. The complainant led the defendant outside before running away screaming. The charges preferred against the defendant were for: enter a dwelling house with intent to commit serious indictable offence; and threaten to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse. The defendant was found not guilty as a result of doubts said to arise in relation to his intention. Nevertheless, the foregoing recitation of facts were not disputed in the proceedings. 2. According to the defendant's treating psychiatrist at the time, the defendant had delusional beliefs that he had fathered many children and that he planned to go down to the pub to find a girl to have his child. At the time that the limiting term was imposed, his treating psychiatrist expressed the fear that, if the defendant were to cease his medication, he would pose a serious risk of harm to others. She recommended 24-hour supported accommodation with no access to illicit substances or alcohol and supervision of his medication. 3. The defendant was released to Community Justice Program accommodation in Goulburn, which was not supervised on a 24-hour basis. Further, the defendant could leave the facility seemingly at will. The defendant was subject to Guardianship Orders relating to accommodation; services: healthcare and medical and dental treatment; as well as financial management orders. 4. The defendant was released on a Community Justice Program but, on 13 July 2012, a fortnight after release on the Program, employees or officers of the Program contacted the Community Mental Health Team at Goulburn because the defendant was overdue for his antipsychotic medication. Apparently, the Community Mental Health Team was not aware of the defendant's presence in the area. 5. The defendant presented to Goulburn Base Hospital at a time that he was delusional and psychotic. This was approximately one week after he had failed to take his medication, as noted above. 6. At the time, Professor Owen was critical of the defendant's accommodation as being unsuitable and causing isolation and requested that he be placed back on a Forensic Order and in more appropriate housing. At the time, the defendant had ceased being a forensic patient and that request was unable to be accommodated. 7. On 26 July 2012, the staff at the Community Justice Program reported to the Guardian that the defendant no longer wanted to live in Goulburn. Instead, the defendant wanted to return to Sydney to have sex with a former girlfriend, who did not want contact from him. He also wanted to have more contact with his mother, it seems, for the purpose of obtaining money for alcohol. 8. On 1 August 2012, the Guardianship Tribunal made an order in relation to the defendant's accommodation, which order was coercive. The defendant moved, subsequently, to Moree, during which time he did not receive any practical supervision from the Community Justice Program or the Public Guardian. His Guardianship Order lapsed on 15 November 2012. 9. One of the factors associated with the lapse of the Guardianship Order was the expression of opinion by Community Justice Program that it could not manage the defendant; that his coercive accommodation function was of limited effect in managing him; that there was no secure accommodation facility available to him; and that it had limited capacity to make effective decisions for the defendant. 10. On 13 December 2012, the defendant committed an offence, which is the index offence to the current application. As a consequence of that offending the defendant once more became a forensic patient. 11. The offence was a reckless wounding, which occurred in the following circumstances. The defendant pushed past the occupant of an apartment in the inner city of Sydney as the occupant unlocked the door. The defendant approached the occupant from behind and pushed him, which caused the occupant to fall to the ground. 12. The defendant demanded money and stabbed the occupant in the neck with a knife. After the initial infliction of the knife wound, there was a struggle during which the defendant stabbed the victim several more times. The defendant was arrested and taken into custody on 14 December 2012. 13. The matter came before the District Court on 29 July 2013 where Solomon DCJ found the defendant unfit to be tried. He was facing charges of assault with intent to rob/arm with an offensive weapon, with wounding and a charge of reckless wounding. The District Court referred the defendant to the Mental Health Review Tribunal under s 14 of the former Act. 14. On 13 September 2013, the Mental Health Review Tribunal found the defendant unfit to be tried and ordered him to be transferred to the Forensic Hospital where he stayed until his transfer back to the Metropolitan Remand and Reception Centre (MRRC) on 30 June 2014. 15. In the meantime, the charges came before the District Court for a special hearing under the former Act. On 30 April 2014 Tuppman DCJ held that, on the limited evidence available, the defendant had committed the offence of reckless wounding. 16. The defendant was found not guilty of the charge of assault with intent to rob, armed with offensive weapon with wounding. Her Honour, during the course of the reasons, determined that she was not satisfied, beyond reasonable doubt, that he intended to rob the victim when he attacked. 17. The defendant was sentenced to a limiting term of 3 years, commencing 13 December 2012 and expiring on 12 December 2015. He was referred to the Mental Health Review Tribunal and, as a consequence, obtained the status of a forensic patient. 18. In September 2015, the defendant was transferred to the Forensic Hospital and, apart from his current Conditional Release, has remained there to this date. On 25 November 2015, the defendant's status as a forensic patient was extended. [1] 19. On 23 February 2016, that status was extended for a period of 5 years. [2] The judgment of 23 February 2016 of Adamson J is the basis for most of the foregoing background summary. 20. On 12 November 2020, the defendant was made the subject of a Conditional Release Order by the Mental Health Review Tribunal, the conditions of which required him to reside in secure accommodation that was to be staffed at all times and on 8 September 2020 the defendant was made the subject of a Guardianship Order. 21. Before dealing with the issues between the parties in those proceedings, it is necessary to understand the legislative framework under which the Court is operating. Legislative Scheme 1. An application for extension orders is governed by Part 6 of the Act, which gives the Minister the jurisdiction or power to apply to the Court for an extension order against a forensic patient. [3] Such an application may only be made if the forensic patient is, at the time of the application, subject to a limiting term or an existing extension order and may not be made more than six months before the end of that limiting term or the expiry of that extension order, as the case may be. [4] 2. It is a requirement of the Act for an application for an extension order to be supported by documentation that addresses each of the matters to which the legislation refers in s 127(2), at least to the extent relevant, and one or more reports assessing the risk of the forensic patient causing serious harm to others and the need for ongoing management of the patient as a forensic patient, including the reasons why the risk cannot be adequately managed by other less restrictive means. 3. There are requirements relating to service of the application upon the forensic patient; notification to the Mental Health Review Tribunal; and disclosure of all reports and other information obtained as a result of preliminary orders and/or relied upon in the application. [5] 4. After an application has been made, there is a requirement for the Court to conduct a preliminary hearing at which the Court is required to deal with the regularity of the application and determine whether it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. If it is so satisfied, then the Court must make orders appointing psychiatrists and/or psychologists (or any other medical practitioners) to conduct an examination of the forensic patient and directing the patient to attend those proceedings. [6] The preliminary hearing must be heard within 28 days of the application being filed. 5. A preliminary hearing in this matter was heard and orders were made by Hoeben CJ at CL. Those orders were in the following terms: "(1) Pursuant to cl 6(5) of Sch 1 of the Act: (a) the Court appoints two qualified psychiatrists and/or psychologists to conduct separate psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) the defendant is directed to attend those examinations. (2) Pursuant to clauses 10 and 11(1) of Sch 1 to the Act the defendant be subject to an interim extension order commencing on and from 22 February 2021 for a period of three months. (3) I appoint Jennifer Thompson as the defendant's tutor in these proceedings." 1. Most relevantly, the Court's function at the final hearing is governed by the terms of Division 3 of Part 6 of the Act, which provides that an extension order may be made by the Court, commencing on the latter of the date on which it was made or when the limiting term or existing extension order expires and may have a duration of up to a maximum of 5 years from the date on which it is to commence. [7] Such an order may be made as a consequence of an application of the kind which the Court has already referred. 2. The Act allows the Court to determine such an application either by making the order or by dismissing the application. Further, it requires the Court to have regard to a number of mandatory considerations which are prescribed. It is appropriate for the Court to recite the provisions of s 127 of the Act, which is in the following terms: "127 DETERMINATION OF APPLICATION FOR EXTENSION ORDERS (1) The Supreme Court may determine an application under this Division for an extension order-- (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant-- (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order." 1. It is unnecessary to deal with the provisions of Division 4 of Part 6, which grants to the Court the jurisdiction to make interim extension orders. As earlier stated, an interim extension order was made in relation to the defendant on 10 February 2021, which commenced on 22 February 2021 and is to expire on 21 May 2021. 2. Importantly, given the issues between the parties in these proceedings, the terms of s 132 allow the Court, if it were to dismiss an application for an extension order, to provide for the continued detention of the patient for a period of 24 hours to enable an assessment of the patient for the purpose of determining whether a mental health certificate should be given, being a certificate under s 19 of the Mental Health Act 2007 (NSW). The capacity of the Court to issue such a 24-hour detention order under the terms of s 132(1) of the Act is particularly relevant to these proceedings, because the defendant submits that an order under s 19 of the Mental Health Act and the regime implemented thereby would adequately manage the risk posed by the defendant and would be a less restrictive means of managing adequately such a risk. 3. In that submission, the defendant is relying upon the provisions of s 122. It is appropriate to recite the terms of ss 121 and 122 of the Act, which are in the following terms: "121 EXTENSION ORDERS FOR FORENSIC PATIENTS (1) The Supreme Court may, on application under Division 2, make an order for the extension of a person's status as a forensic patient. (2) An order made under this section is an 'extension order'." "122 FORENSIC PATIENTS IN RESPECT OF WHOM EXTENSION ORDERS MAY BE MADE (1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that-- (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others. Note : Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007." [8] 1. While it is necessary to consider those matters prescribed by s 127 of the Act in determining whether to make the order or to dismiss the application, the restriction on s 122 of the Act is the determination which conditions the making of an extension order. 2. The terms of s 122(1) of the Act reflect a tension in the test to be applied. Construed in its ordinary and grammatical meaning, the terms of s 122(1) of the Act would require the Court to be satisfied "to a high degree of probability that … the risk cannot be adequately managed by other less restrictive means". 3. Other legislation dealing with orders made in circumstances where there is an unacceptable risk posed by a defendant render the concept of the Court being satisfied "to a high degree of probability" of the posing of "an unacceptable risk" as involving two significant factors: the risk that the defendant will act in a way that would cause harm; and the seriousness of the harm if the risk manifested. It is relatively easy to understand the notion that such an unacceptable risk could be proved in a way that the Supreme Court was satisfied "to a high degree of probability" of the existence of the unacceptable risk, even though the Court was not required to determine that the risk of such a person causing serious harm is more likely than not. 4. In that evaluation, the Court examines the probability that the defendant will engage in conduct that would cause serious harm, with the effect of the harm that was to be caused. Thus, the probability that the defendant will engage in conduct need not be greater than 50%, as long as it is not insignificant, if the harm that would be caused by engaging in such conduct is sufficiently serious to render the combination of the two factors an unacceptable risk and the Court is satisfied of the posing of that unacceptable risk to a high degree of probability. 5. However, when one is required to be satisfied "to a high degree of probability" that the risk cannot be adequately managed by other less restrictive means, the Court is required to determine to a high degree of probability that other less restrictive means are inadequate in managing the risk. 6. Thus, if the issue of whether the risk could be adequately managed by other less restrictive means is only a little less likely than not, it seems the legislature is requiring the Court not to issue the extension order. 7. In other words, the Court must be satisfied to an extent that is greater than the mere balance of probabilities that the unacceptable risk is incapable of being adequately managed by other less restrictive means. In this regard the use of the term "to a high degree of probability" is very different from the manner in which it is used in the Crimes (High Risk Offenders) Act 2006 (NSW). 8. I accept and adopt the analysis of Adamson J as to the proper understanding of whether a regime fits within the term "other less restrictive means". Her Honour said: "I consider that the question whether 'means' are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance." [9] 1. I also accept the comments of Garling J as to the use of the term "adequately managed", when his Honour said: "… that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community." [10] 1. It is necessary to deal with the reports arising from the examinations ordered to be performed on the defendant and the other criteria prescribed by s 127(2) of the Act. Expert Reports 1. As already stated, the Court has ordered the examination of the defendant by two experts and the reports of those experts have been tendered. Dr Anthony Samuels saw the defendant on 17 March 2021 and the report is based upon that examination and interview and the documents provided to Dr Samuels. Much of the report deals with material that it is unnecessary to recite for the purposes of the issues now to be decided. 2. During the course of the examination and interview, the defendant reported to Dr Samuels as to his family and history. He reported that his mother was in a nursing home and that he speaks to her by telephone; that he has two brothers and two sisters; the sisters are in Dubbo and Bathurst respectively. He does not talk to his brothers. 3. Relevantly, the defendant gave information to Dr Samuels as to his children. Dr Samuels reports it in the following way: "Mr Doolan told me that he is a grandfather, that he has 'twenty kids, some in heaven, some down there' (pointing to the ground). He said he has children in Mt Druitt, Walgett, he said he has a daughter, Karen Saunders, in Merrylands but he forgot her number. Mr Doolan said he used to live with 'a lot of girls' but he does not know where they are now." [11] 1. Under the heading Mental Status Examination, Dr Samuels reports that Mr Doolan said he wanted to leave Sydney, because all his children live in Moree and in the bush. The defendant referred to "babies in the family" and told Dr Samuels that he had made eleven children in the Forensic Hospital and, "now [has] to pay child support". He told Dr Samuels that he did not want to be in a forensic ward and wanted Dr Samuels to "put in a good word" for him. That opinion was based upon the fact that the forensic ward "can't handle my money, I like my own money". 2. The report of Dr Samuels contains the expression of view of the Doctor as to the psychiatric issues faced by the defendant. The report records: "In terms of a diagnostic formulation, I concur that Mr Doolan has a major neurocognitive disorder, chronic Schizophrenia and polysubstance misuse issues, as well as an unspecified Paraphilic Disorder which becomes more prominent when his mental state is unstable. On the basis of my examination and the material I have reviewed, I concur that Mr Doolan is at high risk of future violence and aggression, he does represent a sexual threat to others and has a high likelihood of engaging in further criminal offending if his mental state is not well controlled or if he is using substances. In addition, because of the severe intellectual disability, Mr Doolan will require a great deal of assistance in regard to day to day functioning." [12] 1. In answer to a question as to the extent if any that the defendant's psychiatric condition affects his risk of reoffending, Dr Samuels expresses the following opinion: "Mr Doolan's chronic psychotic illness predisposes him to offending through sexual disinhibition and his delusional ideation may also lead to aggression. Mr Doolan's neurocognitive disorder predisposes him to impulsivity and aggression, particularly if he is using substances. His neurocognitive disorder and underlying intellectual disability impact upon his problem solving ability and under stress he may act in an aggressive manner or misinterpret certain situations. His sexual disinhibition seems to be related predominantly to his psychotic illness and when his psychotic symptoms are better controlled it seems that he is less prone to acting on sexual urges." [13] 1. Further, in answer to a question as to whether the defendant poses a risk of causing serious harm to others if he ceases to be a forensic patient, Dr Samuels expresses the view that the defendant is at risk of physical violence and aggression because of his psychosis and underlying neurocognitive disorder. The risk is compounded by substance use which could further disinhibit him. Dr Samuels expresses the view that that the defendant is also at risk of sexual offending but related mainly to his psychotic illness, although his underlying brain damage may heighten the risk. 2. In answering a question as to the change that might occur in the risk factors over time, Dr Samuels expresses the view that the risk that the defendant presents is very much related to the control of his psychotic illness. If this is well-controlled then the defendant is likely to be more cooperative and less likely to be aggressive. He is also less likely to be sexually disinhibited. On the other hand, if the defendant were to use illicit substances, this could exacerbate his underlying brain damage as well as his psychotic illness and heighten the risk of physical and sexual violence. 3. Dr Samuels expresses the view that if the defendant is not in a "well structured and supported environment, his capacity to look after himself would be quite limited and it was evident on examination today that [the defendant] has quite limited skills, having difficulty using a lift, and it seems unlikely that he would be able to competently care for himself without a high level of support." 4. Dr Samuels expresses the opinion that the continuation of the defendant's forensic patient status would be the most appropriate way to manage the defendant's condition. In that situation, if the defendant were becoming unwell or exhibiting aggressive behaviour and posing a risk of serious harm to others, there is a potential for the defendant to be returned to a Forensic Hospital. The defendant, according to Dr Samuels, would be difficult to manage in a general hospital setting and most general hospital psychiatric units would be quite reluctant to take on the defendant's long-term care and management. 5. As to the defendant's classification as an involuntary patient under the then Mental Health Act, Dr Samuels expresses the view that he qualifies as an involuntary patient because of his ongoing risk and chronicity and could be maintained on a Community Treatment Order but the options for his care in that situation would be quite limited, if the defendant were to become seriously unwell. Dr Samuels also notes the difficulty of enforcing Community Treatment Orders. 6. Dr Samuels also deals with the Guardianship Order in relation to the management of his finances in particular and also in relation to residence. Dr Samuels sees a Guardianship Order as being a means by which the defendant's substance abuse could be supervised and the availability of substances minimised. According to Dr Samuels there were no other less restrictive means that are available. Further again, Dr Samuels expresses the view that the risk factors are not going to change in the near future and expresses the view that an extension of the status of the defendant as a forensic patient for a period of 5 years would be appropriate. 7. Dr Dayalan produced a report dated 9 April 2021. It discusses, as one would expect, the history of the defendant including his medical history; his drug and alcohol history; his history of offending and violent behaviour; his personal and family history; and his psychosexual history. It also expresses a view on his mental state examination. During the course of the time that the defendant was attending on Dr Dayalan for the examination, Dr Dayalan had an exchange with a support staff member that accompanied him. 8. In the course of the exchange, the staff member reported that the defendant could be impulsive and impatient when accompanied by staff outside of the residence. He would often walk away whilst support staff were dealing with shop assistants or other matters and engage in inappropriate conversations with women in public, often indicating that he would like to have sex with them at which point support staff members have intervened to "de-escalate" the situation. 9. Nevertheless, there had been no physically aggressive behaviour or indecent exposure. Only male staff members were allocated to the defendant. The defendant also often requested alcohol to drink but had not sought to use illegal drugs and the staff members expressed the view that he continued to present with psychotic symptoms. 10. Dr Dayalan diagnosed the defendant consistently with the diagnosis expressed by Dr Samuels, except Dr Dayalan was "unable to confirm a diagnosis of sexual paraphilia". Dr Dayalan conducted a risk assessment of the defendant. 11. In the course of that risk assessment, Dr Dayalan dealt, to some extent again, with the defendant's history including his problems with violence, antisocial behaviour and relationships. The report notes that the defendant had never been employed. It also notes the history of the defendant with substance abuse; major mental disorder; and presenting with antisocial personality disorder/traits relevant to his risk in the future of violence. 12. The report also discusses the defendant's traumatic experiences during childhood; his violent attitude; and the difficulties with treatment or supervision response. The report notes that the defendant has a long history of non-compliance with treatment and poor response to supervision. Dr Dayalan also remarks on the defendant's limited insight into his mental illness and other difficulties. The report continues in the following terms: "Given the limited insight into his psychiatric conditions and cognitive impairment, challenges can be anticipated in the implementation of plans by professional services. Management of [the defendant] as a forensic patient where his compliance with treatment is closely monitored by the community mental health team and the MHRT will mitigate some of the risk of non-compliance. Ongoing placement in a 24/7 accommodation where access to substances are [sic] restricted will assist with maintaining his abstinence." [14] 1. The report deals with the question asked of Dr Dayalan as to the extent that each of the psychiatric conditions affect the defendant's risk of reoffending to which Dr Dayalan gives an extensive answer. As to the schizophrenia, Dr Dayalan expresses the view that acute exacerbations of the defendant's schizophrenia will result in confusion. As a consequence, the defendant's impairment in judgement and ability to consider consequences will be further impaired. Further again, the defendant's grandiose beliefs will have a direct bearing on his risk of sexual reoffending. 2. As to the intellectual disability, Dr Dayalan expresses the view that it contributes to the impaired judgement exhibited during offending behaviour. Intellectual impairment also places him at risk of breaching legal orders due to difficulty with understanding and remembering the conditions imposed by those orders. 3. Dr Dayalan notes, in the report, that the defendant had suffered an acquired brain injury which indicates potential damage to the frontal lobe, thereby, if it be the case, negatively affecting the defendant's capacity at impulse control which, in turn, will contribute to his risk of reoffending by adversely impacting on the defendant's ability to control his impulses. 4. Dr Dayalan expresses the view that the features of antisocial disorder/traits with which the defendant has been diagnosed increases the defendant's risk of reoffending because it involves poor impulsivity, consistent irresponsibility, disregard for the safety of others and a tendency for aggression. 5. Dr Dayalan reiterates that there are a number of historical and dynamic risk factors that increase the defendant's risk of violent behaviour and, given that the index offence had resulted in serious harm to the victim, the risk assessment tools that measure the risk of reoffending with a serious offence of like kind, would suggest that that there was a high risk of causing serious harm to others. 6. Dr Dayalan expresses the view that the defendant's history indicates that he requires a comprehensive approach to managing his risks and a regime that merely ensured the defendant's compliance with psychiatric medication and abstinence from substances would not effectively manage his risk of serious harm to others. The report noted: "Transition from the Forensic Hospital to the community usually occurs via a medium secure unit that allows for a graded and safe transition into the community. In Mr Doolan's case, he had been deemed inappropriate for referral to medium secure units due to his sexually inappropriate behaviour. He had therefore been directly discharged into the community. Individuals with significant cognitive and functional impairment such as Mr Doolan are anticipated to struggle with such a drastic change in the level of restriction and supervision. In Mr Doolan's case, the problems anticipated with such a transition has [sic] been partly mitigated by placement in 24/7 supported accommodation and the comprehensive nature of the conditions imposed given his forensic patient status. In my opinion, Mr Doolan's risk of causing serious harm to others will be increased if he ceases to be a forensic patient as this allows for a more comprehensive approach to managing his risks." [15] 1. The report of Dr Dayalan proceeds to comment that a reduction, of any kind, in the level of supervision of the defendant is likely to be associated with increased risk of non-compliance with treatment and a relapse into substance abuse. Dr Dayalan expresses the view that the chronic psychotic illness, from which the defendant suffers, and the risk of substance abuse, which would exacerbate the psychotic symptoms, present a particular challenge, particularly because it is coupled with intellectual disability and poor impulse control. 2. The challenge would be in managing the defendant's risk of violent and sexually inappropriate behaviour, which will be an ongoing risk irrespective of his placement and level of supervision. However, the level and extent of his supervision and other external measures may reduce the extent of the risk posed. 3. The report of Dr Dayalan then compares the regime that would apply as a forensic patient as compared to the regime under a Community Treatment Order. The former, being an extension of the status of the defendant as a forensic patient, would allow for periodic evaluation of his treatment and management in the community by the forensic arm of the Mental Health Review Tribunal. This would allow for input from specialist services such as Community Forensic Mental Health Services which would review risk management on a six-monthly basis. 4. Dr Dayalan expresses the view that further admission to a psychiatric facility, given the extensive period during which the defendant has been at such a facility, would not be likely to influence significantly his long-term risk of engaging in violent or sexually inappropriate behaviour. On the other hand, following admission to an inpatient facility, the defendant could be discharged into the community at the discretion of the medical practitioner without any oversight from the Mental Health Review Tribunal. Those are the two extremes. 5. The report also expresses the view that Community Treatment Orders are not very effective in the management of individuals who are at risk of becoming itinerant, which is an added risk factor in the case of the defendant. 6. Fundamentally, the comparison of the different regimes leads Dr Dayalan to recommend that the defendant have his status as a forensic patient extended for a period of 2 years. That recommendation is based upon the clinical opinion and the clinical information that was provided to the doctor. 7. It is unnecessary to repeat anything further from the two expert reports. The earlier reports and risk assessment material were extensively summarised by Hoeben CJ at CL in the preliminary judgment. [16] It is unnecessary for me to repeat that analysis. All of that material has been read and the summary is adopted as an accurate depiction of the views earlier expressed in relation to the defendant. Defendant's Submissions 1. The defendant addresses the statutory framework under which the Court is required to act. Without in any way diminishing the assistance that analysis has provided the Court, the matters addressed in that aspect of the submission have been dealt with earlier in the analysis of the legislation. 2. The defendant relies upon a report of Dr Jane Bartels of 9 April 2021; the report of the NSW Community Forensic Mental Health Service of 14 April 2021; the letter from Daniel Palffy of 21 April 2021 that includes the NDIS Plan, the Behaviour Assessment Restrictive Practices Protocols and the Behaviour Assessment and Comprehensive Behaviour Support Plan; a letter of 22 April 2021 from the Granville Assertive Response Team and the accompanying email from Praveen Raghupathy, Acting Case Manager; a letter from Kalati Perese, Director, Health Care Request (NDIS provider) of 23 April 2021; and the report of Wayne Hunt, Mental Health Clinician, Western Sydney Local Health District, of 29 March 2021. Each of those reports and/or documents are annexed to the Affidavits of Ms Agnes Dalumpines of 21 January 2021 or 23 April 2021. 3. The defendant concedes that on all the evidence available, it is open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he were to cease being a forensic patient. The defendant, however, submits that the Court could not be satisfied to a high degree of probability that the risk cannot be adequately managed by other less restrictive means. 4. Even if the Court were satisfied of that latter precondition, the defendant opposes an extension order for a period of 3 years, as submitted by the Attorney General. The material upon which the defendant relies, outlined above, including other material before the Court, is used by the defendant to demonstrate that the defendant has been managed satisfactorily and/or reasonably in the period during which the defendant has been at liberty and, as a consequence, to support the submission that the Court could not be satisfied to a high degree of probability that the risk cannot be managed adequately by other less restrictive means. 5. The defendant submits that because of Mr Doolan's chronic mental health condition and cognitive/functional impairments, the following services are available to him, which, in combination, serve as a less restrictive means of risk management if he were to cease to be a forensic patient. Those services are: Community Treatment Order; a Guardianship Order with coercive accommodation functions; Healthcare Request funded under NDIS which provides accommodation and 24/7 casework and supervision including line of sight monitoring when accessing the community; an NDIS-funded coordinator; established (or at least existing) coordination and cooperation between each of the service providers; and admission as an involuntary patient under the Mental Health Act in the event that his mental health would deteriorate, warranting more acute inpatient care. 6. The defendant, as did the plaintiff, then addressed, in his submissions, each of the criteria in s 127 that are required considerations of the Court in determining whether to issue an extension order. To the extent not already addressed, those criteria will be addressed later in these reasons. Consideration 1. Before dealing with the issues between the parties in this application, including the determination of whether the plaintiff has satisfied the Court, to a high degree of probability, that the defendant cannot be adequately managed by less restrictive means, it is necessary to compare the regimes that, under the submissions before the Court, the parties prefer. 2. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2), [17] Adamson J addressed the differences between the legal regimes for forensic and civil patients. Her Honour was dealing with the terms of the Mental Health (Forensic Provisions) Act, which has been overtaken by the promulgation of the Act. 3. Nevertheless, the regimes are insignificantly different. I gratefully adopt the comparison that her Honour described and recite the passage in the following terms: "[100] There are several areas of difference between the legal regimes for forensic and civil patients. The relevant areas of difference are in respect of the following, each of which will be considered in turn: (1) The objects of the legislation; (2) The composition of the Tribunal; (3) Review by the Tribunal; (4) The basis for detention; (5) Release from detention; (6) Imposition of conditions while patient is living in the community; (7) Consequences of breach of conditions." [18] 1. Her Honour then dealt with each of the criteria, outlined above, in the following passages of her Honour's judgment. [19] Again, I gratefully adopt the comments and the comparison between the two regimes in the judgment of Adamson J that thereafter followed. 2. On 29 October 2020, the Mental Health Review Tribunal conducted the hearing into the circumstances of the defendant. As a result of that hearing, a decision issued on 12 November 2020. 3. The effect of the decision was to accept the recommendation of the experts. That recommendation was the subject of significant consensus. 4. The decision was made to discharge the defendant from the Forensic Hospital within three months following the issuing of the order. The defendant was released and has been living in the community since that time. 5. In the community, the defendant was put under the care of a case manager from the Granville Assertive Response Team, who manages the defendant in accordance with the NSW Ministry of Health Guidelines for Forensic and Correctional Patient Ground Access, Leave, Handover, Transfer and Release. 6. The aforesaid management required meetings at the defendant's home and/or the offices of the Team. It also required the defendant be subject to the care of a psychiatrist at Cumberland Hospital during the period of his release. 7. It required the defendant to accept medication and other treatment prescribed and empowered the psychiatrist, as is the intention of the statutory regime, to direct the defendant to attend a medical health facility and seek admission to that facility as a voluntary patient. 8. There are also conditions on the consumption of alcohol and drugs, as one would expect. The order/decision of the Tribunal also involved requirements as to accommodation and the notification of the defendant's case manager of any alterations in his accommodation or telephone addresses. 9. At the time of issuing the orders binding upon the defendant, the Tribunal issued reasons for its decision in which the Tribunal dealt with the provisions of s 43 of the Act. The Tribunal reiterated the defendant's very poor insight into his mental state, his need for treatment and the effect that his illness has on his behaviour. This comment by the Tribunal accords with the consensus of view expressed in the expert reports that have been required by the interim decisions in these proceedings. 10. Nevertheless, the Tribunal noted the defendant's stability in many aspects of his conduct. Notwithstanding that stability there are demonstrated areas of instability including in areas of relationships and employment, which issues predispose the defendant to violence because of their causative effect on a chaotic and unsupported milliere. 11. The reasons for the decision also note that the defendant continues to experience symptoms of psychosis, including cognitive and affective instability if his needs are not immediately met. The defendant, according to the reasons, finds it difficult to manage emotional and interpersonal stress. 12. The Tribunal, in its Determination, referred to the defendant's reluctance to move to his premises on conditional release. It also referred to the opinion of his psychiatrist that the defendant had reached his rehabilitation limits at the Forensic Hospital. 13. The Tribunal took particular note of the level of staff and monitoring that was to occur during the defendant's conditional release. It is appropriate to recite the following passage of the reasons of the Tribunal: "The level of supervision and monitoring at his proposed accommodation including the need for continual monitoring is likely to be addressed by the level of staff supervision available there. The Tribunal was told that a meeting of stakeholders had taken place in the previous week and further meetings were in the offing, to ensure that Mr Doolan's transition is seamless and without unacceptable risk to himself and to others. It was recognised that he presents a risk of harm to himself and others and also that he presents a significant risk of absconding. … Whilst he undoubtedly presented risks if not properly monitored, the Tribunal was satisfied that provided the additional matters raised by the CSP are attended to and the proposed level of monitoring and supervision takes place, Mr Doolan's conditional release did not pose an unacceptable risk to his safety or the safety of other members of the community. The conditional release order was conditional upon the agreement of the Medical Superintendent and also on the basis that the outstanding matters pertaining to the release had been sufficiently finalised before Mr Doolan is able to go to his new accommodation." [20] 1. Prior to the issuing of the Conditional Release Order, there had been recent incidents in which the defendant had disclosed sexual disinhibition with staff and other persons. [21] They occurred in or about September 2020. Those incidents were taken into account by the Tribunal in issuing the Conditional Release Order. 2. The report of Dr Jane Bartels, Consultant Forensic Psychiatrist at the Western Sydney Local Health District was compiled on 9 April 2021. Again, it recites the defendant's history and refers to occasional lapses of inappropriate sexual behaviour towards female staff, which had been managed with redirection and counselling and the fact that the last inappropriate behaviour was in late 2019. 3. The Report refers to the defendant denying thoughts to harm others and the position by the defendant of a basic understanding of repercussions of what would happen if he did harm others. The defendant, according to the report, also displayed a basic and limited understanding of not being sexually inappropriate or approaching and touching women without consent. 4. The report comes to the conclusion that the risk of violence and inappropriate sexual behaviours have been mitigated by treatment of psychotic symptoms; and continue to be so mitigated or ameliorated by that and by the abstinence from illicit substances, together with secure accommodation and intensive supervision. 5. Notwithstanding the noted amelioration and/or mitigation, Dr Bartels recommends that the defendant continue his current order for conditional release with no changes. 6. In the report of Wayne Hunt, Mental Health Clinician at the WSLHD Forensic Community Mental Health Service, dated 29 March 2021, a further assessment and the expression of further opinions is made in relation to the defendant. It is unnecessary to repeat much of that report, but it is necessary to note that the report recommends no change to current plans. 7. Nevertheless, it also notes that the defendant is compliant with all conditions and happy to provide urine samples for urine drug screening when required and has, in that sense, complied strictly with the forensic order. 8. The defendant has also tendered a report of Dr Marcelo Rodriguez, Psychologist with the NSW Community Forensic Mental Health Service. Once more, the history of the defendant is outlined including some expressed disinhibition about contact with women and the handling of his finances. 9. Apparently, the defendant maintained delusions as to the number of children he has fathered and the fact that he could make women pregnant by his thoughts. The report considers that conditional release continues to be an appropriate regime for the defendant and expresses the opinion that conditional release is the least restrictive care consistent with the safe and effective care of the defendant. 10. The defendant has remained compliant with directions from staff and other appropriate personnel and has, during his release, demonstrated increased efforts to improve his health and well-being, including in relation to the management of his diabetes. There have been no instances where he has been required to involve the intervention of the Tribunal. Nor has he acted in a way that has required chemical restraints and he has behaved appropriately during his conditional release. 11. The foregoing opinion was expressed by Kalati Perese, Director of Health Care Request, NDIS provider, in a letter dated 21 April 2021. Importantly, the last mentioned report expresses the opinion that if the defendant were to cease to be a forensic patient, there would be no change to the behaviour management plan in relation to accommodation and service provision. In other words, if the Court were to refuse to extend his status, there would be no change to the behaviour management plan for accommodation and service provision. 12. As earlier stated, the defendant does not take issue with the Court's capacity to be satisfied to a high degree of probability that the defendant poses an unacceptable risk. Rather, the defendant is suggesting, and, in that regard is supported by the comments of the Director of Health Care Request, that if the Court were not to extend his current status, there would be no change to the behaviour management plan for his accommodation and service provision and there is no reason why the Court should be satisfied, to a high degree of probability, that the extension of his current status is the least restrictive means by which to manage the defendant's risk adequately. 13. As earlier stated, the Court is required to take into account: the safety of the community; the reports received from the persons appointed under s 126(5) of the Act to conduct examinations of the defendant; the report of the qualified psychiatrist, registered psychologist or registered medical practitioner, provided under s 125(b); any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient; the order or decision of the Tribunal; any report of the Secretary of the Minister for Health or any other Government departments; the level of compliance by the defendant of the obligations to which the defendant has been subject while, relevantly, on conditional release; the views of the Court that imposed a limiting term; the views of the Court that imposed the existing extension order, being, in this case, the views of Adamson J; and any other information. 14. Most of the foregoing has been the subject of summary in the earlier parts of these reasons for judgment. The ultimate question to which the Court must direct its attention is whether it is satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm in the absence of the extension that has been sought and whether that risk cannot be adequately managed by other less restrictive means. 15. There can be no doubt that the regime, earlier outlined in these reasons, of a continuing Community Treatment Order; a continuing Guardianship Order; continuing NDIS-provided accommodation and casework and supervision; an NDIS-funded coordinator; established or existing coordination and cooperation between each of them and each of the service providers; and admission as an involuntary patient if the defendant's mental health deteriorates, would be a less restrictive means of managing the defendant than the continuation of the defendant as a forensic patient. Would that combination adequately manage the defendant and the risk posed by him? 16. As to the satisfaction of the Court as to the unacceptability of the risk, there is little or no doubt that the defendant poses an unacceptable risk of causing serious harm to others if he were to cease to be a forensic patient. The overwhelming consensus of the experts is that the defendant suffers significant psychoses which were causative of his offending on earlier occasions. 17. His schizophrenia is treatment resistant and although there has been a significant level of stability displayed by the defendant, those psychoses and the defendant's assessments make it clear that the defendant poses an unacceptable risk. While the Court has said there is "no doubt", the Court need not be persuaded of the unacceptability of the risk beyond reasonable doubt. 18. Nevertheless, the Court must be satisfied of the unacceptability of that risk to a high degree of probability which is a level of satisfaction that is significantly higher than the balance of probabilities. The Court is satisfied of that factor to that extent. 19. The second aspect is more difficult. There can be no doubt that the defendant is currently adequately managed and the reports, particularly the latter reports to which the Court has referred, are testimony to that adequate management. The defendant is to be congratulated on the progress that he has shown. 20. Were it not for the report from Kalati Perese, the overwhelming body of opinion would be that a continuation of the defendant's status as a forensic patient is the least restrictive means by which he may be adequately managed. However, that report makes clear that if the defendant were to cease to be a forensic patient, then at least in relation to accommodation and service provision there would be no change to the behaviour management plan. 21. Essentially, the major difference between the combination of requirements to which the defendant refers and the continuation of the defendant as a forensic patient would be the capacity to require the defendant involuntarily to enter a Forensic Hospital and the role of the Mental Health Review Tribunal in the continued review of the defendant. In the absence of the period during which the defendant has been on conditional release, the Court would have no hesitation in being satisfied to a high degree of probability that the least restrictive means that would enable the risk posed by the defendant to be managed adequately would be to continue his status as a forensic patient. 22. The period during which he has been on conditional release provides evidence to support the submission that the defendant's status as a forensic patient is not the least restrictive means by which the risk posed by the defendant may be adequately managed. 23. As already stated, during that period, the defendant has not required the intervention of the Tribunal. Nor has the defendant behaved in a manner that has required his involuntary admission to a Forensic Hospital. 24. Indeed, if the Court could be assured over a longer period than has been the case up until now of the continued behaviour of the defendant, then the Court would have a sufficient basis to qualify the prima facie position otherwise expressed by the vast majority of experts who have expressed an opinion on this question. 25. The Court is required to determine the matter on the basis of the evidence as it stands. On the current evidence, and given the limited period during which the defendant has been on conditional release, the Court is satisfied to a high degree of probability that the least restrictive means by which the defendant can be managed adequately is to continue his status as a Forensic Patient and, therefore, to grant the extension order. 26. However, the evidence suggests that in the not too distant future, the period of his relatively stable behaviour and circumstances, if it were to continue, will be such that that the Court would not be satisfied to the high degree of probability necessary that this more restrictive means is the only manner of adequately managing the defendant. 27. The fundamental problem for the Court, at this point in time, is the short time period during which the defendant has been on conditional release. There is some significant optimism as a result of the period thus far, during which the defendant has been on conditional release. Yet that period proves the risk posed by the defendant is being adequately managed as a Forensic Patient. 28. As a consequence of the foregoing, while the Court is satisfied to a high degree of probability of both the unacceptability of the risk and that there are no other less restrictive means that would adequately manage the defendant, the stability and behaviour displayed by the defendant during the period of his conditional release has persuaded the Court that the duration of the extension order should be significantly less than that sought by the Attorney General. 29. If, as would be hoped, the defendant's behaviour and the effects of his psychiatric conditions continue to stabilise and improve, then one would suspect in a relatively short time the Court would be in a position to be satisfied that a less restrictive means would adequately manage the risk posed by the defendant. For that reason, the Court will extend the status of the defendant as a forensic patient for a period of only 18 months. 30. It will then be for the Attorney General to determine whether, at the conclusion of that period, it would seek to have the defendant subject to a further extension order and, ultimately, for the Court, as then constituted, to determine whether it is satisfied to a high degree of probability necessary to make such an order. That will, necessarily, be impacted by the behaviour and improvement in condition of the defendant over that period. 31. The Court makes the following orders: 1. Pursuant to the provisions of s 127 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant's status as a forensic patient is extended for a period of 18 months from the date of this order; 2. Access to the file in respect of these proceedings is restricted and may only be granted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party's application for access and the parties have been afforded an opportunity to be heard. ********** Endnotes 1. Attorney General of NSW v Doolan [2015] NSWSC 1773. 2. Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107. 3. Mental Health and Cognitive Impairment Forensic Provisions Act, s 123. 4. Mental Health and Cognitive Impairment Forensic Provisions Act, s 124(1) and (2). 5. Mental Health and Cognitive Impairment Forensic Provisions Act, s 126. 6. Mental Health and Cognitive Impairment Forensic Provisions Act, s 126(5). 7. Mental Health and Cognitive Impairment Forensic Provisions Act, s 128. 8. Mental Health and Cognitive Impairment Forensic Provisions Act, ss 121 and 122. 9. Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [96]. 10. Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63]. 11. Report of Dr Anthony Samuels at [232], 17 March 2021, Court Book, Exhibit CB1, p 135. 12. Report of Dr Anthony Samuels at [253], 17 March 2021, Court Book, Exhibit CB1, pp 137-138. 13. Report of Dr Anthony Samuels at [256]-[258], 17 March 2021, Court Book, Exhibit CB1, p 138. 14. Report of Dr Satish Dayalan, 9 April 2021, Court Book, Exhibit CB1, p 181. 15. Report of Dr Satish Dayalan, 9 April 2021, Court Book, Exhibit CB1, pp 185-186. 16. Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 3) (Preliminary) [2021] NSWSC 57. 17. [2016] NSWSC 107. 18. Ibid, at [100]. 19. Ibid, at [101] to [118]. 20. Reasons for Decision of the Mental Health Review Tribunal, 12 November 2020, Court Book, Exhibit CB3, p 596. 21. Exhibit CB3, p 656 and following. 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 May 2021