Supreme Court New South Wales Medium Neutral Citation: Attorney General for New South Wales v HRM bht Ramjan (Final) [2021] NSWSC 1535 Hearing dates: 29 October 2021 Date of orders: 11 November 2021 Decision date: 29 November 2021 Jurisdiction: Common Law Before: Rothman J Decision: Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the status of HRM as a forensic patient be extended up to and including 11 November 2023. Catchwords: MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Extension Order – unacceptable risk – less restrictive means – extension granted Legislation Cited: Crimes Act 1900 (NSW) ss 61I, 112 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 69, 70, 72, 122, 122(1)(b), 125(b), 126(5), 127(1) Cases Cited: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 Attorney General of NSW v HRM [2016] NSWSC 1189 Attorney-General of NSW v HRM (No 2) [2014] NSWSC 288 Attorney General of New South Wales v HRM [2016] NSWSC 158 Attorney General (NSW) v HRM [2017] NSWSC 1572 Attorney General (NSW) v HRM bht Thompson [2019] NSWSC 76 Attorney General for New South Wales v HRM (Preliminary) [2021] NSWSC 1222 Category: Principal judgment Parties: Attorney General for New South Wales (Plaintiff) HRM by his tutor Barbara Ramjan (Defendant) Representation: Counsel: D New (Plaintiff) J Lucy (Defendant) Solicitor: Crown Solicitor's Office (Plaintiff) Legal Aid (NSW) (Defendant) File Number(s): 2021/172559 Publication restriction: The name of the defendant not be published or broadcast under s 162 Mental Health Act 2007 (NSW). Judgment 1. HIS HONOUR: By Summons dated 15 June 2021, the plaintiff, the Attorney General for New South Wales, seeks an Extension Order that would have the effect of continuing the status of the defendant as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (hereinafter "the Act"). The Extension Order seeks that the status continue for a period of two years from the date of the order. Background facts 1. The defendant is 48 years of age and currently lives in rural New South Wales, near his brother. The defendant has a business buying and selling scrap metal and his affairs are managed by the NSW Trustee & Guardian. The Public Guardian has been appointed his Guardian with the power to make decisions about services to be provided. 2. The conditions under which the defendant suffers will be outlined later in these reasons for judgment. It is sufficient for present purposes to recite that the defendant suffers from some significant disabilities, including borderline intellectual disability and requires assistance with life skills, problem-solving and emotional regulation. His disabilities are not amenable to change or medication. 3. The defendant consumed alcohol during his teenage years and also consumed cannabis occasionally. He drank excessively as an adult. 4. The defendant committed a number of offences between 1996 and 2007. At that stage, the defendant was between 23 and 34 years of age. Those offences included stealing, assault with intent, driving whilst disqualified, larceny, destroy or damage property, driving recklessly, possess/use a prohibited weapon, and the index offences. There was also an offence of assault officer in the execution of duty. 5. The index offences arise from a charge preferred against the defendant on 17 August 2006. On that date, the defendant was charged with three offences contrary to s 61I of the Crimes Act 1900 (NSW). That indictment charged that the applicant had sexual intercourse with a person without consent, knowing that the person did not consent and with one offence of aggravated break and enter and commit serious indictable offence, contrary to s 112 the Crimes Act. 6. On 3 September 2009, following a special hearing, Murrell SC DCJ (as her Honour then was) concluded that, on the limited evidence available, the defendant committed the index offences: R v HRM [2009] NSWDC 245. In the course of her Honour's judgment, her Honour said: "[21] At about midday on 4 April 2006 the accused went to premises adjacent to the complainant's residence. In the period until about 4:30 or 5 p.m. he drank with two acquaintances, consuming at least eight stubbies of beer and probably more. In the course of the afternoon, the accused observed the complainant in the next-door premises and said words to the effect of 'she would be all right for a girlfriend'. He became somewhat intoxicated and at one stage was 'nodding off'. When he left the premises he was 'a little bit intoxicated' but was 'not overly drunk' and was capable of walking. He saw a cat and was told that it belonged to the complainant. He picked up the cat and walked in the direction of the complainant's residence. [22] It was the complainant's evidence that a man (who must have been the accused) appeared on her front porch and asked to come in for a drink. According to the complainant's police statement 'he spoke of wanting to be with (the complainant) and wanting to be (her) friend'. The complainant refused the request to come into her house. The man was drinking a stubbie of beer. Later, the police seized an empty stubbie from the complainant's front porch. It was found to contain the accused's DNA. [23] The accused went to the side of the house and then to the backyard, where he played with the complainant's young daughter. The complainant removed washing from the line and took it into the house. The complainant's daughter came into the house, followed by the accused. The complainant asked the accused to leave the house but he refused to do so. The complainant walked to the front of the house, successfully enticing the accused out of the house. The complainant went back inside, securing the latch on the front screen door. She went to the kitchen to locate a key so that she could lock the front screen door. [24] When the complainant was standing in her living room, the accused grabbed her by the arms and told her to be quiet. He put a hand over her mouth. The complainant bit the accused on the hand. The complainant found herself lying on her back on the floor. The accused pulled his pants down to his knees and pulled her pants down, possibly to her knees, and proceeded to have penile/vaginal intercourse, causing the complainant to feel some pain. The complainant estimated that the intercourse continued for between five and fifteen minutes. The complainant was struggling. She managed to get onto her hands and knees and reached for the telephone, intending to dial for assistance. However, she discovered that the lead had become disconnected. She hit the accused over the head with the telephone. He was undeterred. She began to search for her mobile telephone. As she was doing so, the accused commenced penile/anal intercourse, which continued for five to ten minutes. The complainant believes that the accused did not ejaculate. [25] The complainant found herself with her back to the floor. The accused 'tried it again'. It was the complainant's evidence that the accused put his penis back into her vagina 'quite a few times'. 'Almost immediately' that the accused 'tried it again' the complainant succeeded in yanking his penis. It was soft. After words were exchanged, the accused left, saying that he would 'come back next week to finish the job'. [1] 1. On 31 July 2013, the Mental Health Review Tribunal (hereinafter "the Tribunal") ordered the conditional release of the defendant, which then occurred on 26 August 2013. The conditions of the release included an order that the defendant not be absent from the accommodation for three weeks, except in the company of a case manager. On 26 August 2013, the defendant commenced anti-libidinal medication; a case manager was appointed under the Community Justice Program (now called the Community Safety Program (CSP)); and drop-in support was provided by New Horizons for 70 hours per week. 2. On 5 November 2013, the Tribunal conducted a hearing and on 12 December 2013 the Court (Davies J) granted an Interim Extension Order. 3. On 10 January 2014, the Tribunal conducted an early review consequent upon the orders of the Court. Further, on that date, drop-in support was confirmed at 35 hours per week. 4. On 21 March 2014, the Court (Garling J) issued an Extension Order for a further 12 months: Attorney-General of NSW v HRM (No 2) [2014] NSWSC 288. On the same date the Tribunal conducted an early review of the defendant's situation as a result of the defendant returning a positive urine test for cannabis. 5. On 3 June 2014, as a consequence of the Tribunal review, arrangements were made for the defendant to commence a series of six appointments to address the risk of sexual re-offending and for that purpose to see a psychologist. The first such appointment was on 9 July 2014. 6. Contrary to the conditions under which the defendant was required to conduct himself, the defendant travelled to Queensland without permission and an early review by the Tribunal occurred due to the defendant's disengagement from support services still being provided by New Horizons. The support service was dropped to 25 hours per week of contact time. 7. The defendant failed to attend appointments with a psychiatrist on 8 December 2014. The defendant had been referred by one psychiatrist to another, but the defendant refused to attend either of the psychiatrists and did not follow-up psychiatric appointments. 8. Concern was expressed by the NSW Trustee & Guardian relating to the defendant's gambling and certain financial issues associated with the results of that gambling, including, it seems, an amount borrowed from his sister. In its summary of the defendant's forensic history, annexed to its decision of 19 August 2021, the Tribunal summarised the circumstances of the review it had conducted on 28 April 2015. 9. After noting a number of experts had been requested to provide reports to the Court for the purpose of the Extension Order status at that time, the Tribunal noted that it was provided, in particular, with the Report of Professor Susan Hayes, and other reports. 10. The history referred to the CJP report of 13 April 2015 and, in particular, to the requirement to address the concerns raised and to ensure proper communications between the case management providers and the effective reporting to the Tribunal of any matters of significance, including breaches. Specific breaches were addressed in that report. 11. Reference is also made to the Report of 14 April 2015 in which there was a view expressed as to the support needs required by HRM, being 15 hours per week. Of importance is that the New Horizons' staff monitored the defendant's medication consumption, but the task of his support workers under that regime was to enquire of the defendant as to whether medication had been taken; not to observe or police the taking of the medication. 12. Following the application for an Extension Order again made, the Court, as presently constituted, granted an Extension Order on 10 June 2015: Attorney General of New South Wales v HRM [2016] NSWSC 158. There was a further review by the Tribunal on 18 August 2015 and, on 8 January 2016, the Tribunal ordered the defendant's detention at the Nepean Hospital as a result of the defendant being absent from accommodation without permission; failing CDT tests; an admission as to the use of alcohol; the refusal and/or failure to see his psychiatrist; and concern in relation to inappropriate sexualised comments. 13. At the s 68 MHRT review to which the immediately preceding paragraph refers, HRM's psychiatrist gave evidence that he had not seen HRM for approximately two months and that he had prescribed Zyprexa, an anti-psychotic medication. The Zyprexa had been prescribed in August 2015 following the earlier mentioned review. 14. Concern was expressed by the psychiatrist that the defendant may be developing a psychotic illness. Concerns were also expressed about a relationship with the defendant's niece and neighbours, which required an assessment of risk and a risk management plan. 15. The inappropriateness of conduct was also noted in nursing notes of 12 and 13 January 2016, which recorded "over familiarity with female patients". At Nepean Hospital, the defendant was treated by Dr Brakoulias, who did not consider that the defendant required ongoing hospitalisation. 16. In his Report of 15 January 2015, Dr Brakoulias expressed the opinion that the defendant had not shown any signs of acute psychosis; did not meet the criteria for mental illness under the Mental Health Act; and that further detention would be detrimental to his well-being. He also expressed the opinion that the need for close nursing supervision due to HRM's sexual risk had placed staff and other patients at "unnecessary risk". Nevertheless, Dr Brakoulias gave evidence that HRM had not shown any signs of sexualised behaviour in the mental health unit. 17. On 8 April 2016, the Tribunal reinstated the conditional release order. Dr Ellis reported that the defendant continued to meet the criteria for an intellectual disability having been placed in the range more than two standard deviations below the mean in the population, when tested. The level of function showed consistent requirements for assistance in a number of domains including literacy, life skills, problem-solving and emotional regulation. This was supported by the clinical notes from New Horizons. 18. Those notes disclosed intermittent poor hygiene; poor home cleanliness; the need for emotional support regularly when dealing with the public or his relatives; and emotional support in controlling impulses. Dr Ellis provided a significant risk assessment and assessed the defendant under the static testing regime then in place: STATIC 99-R. 19. A further review by the Tribunal occurred on 30 May 2016. The Court (Campbell J) issued a further Extension Order, expiring 23 August 2017: Attorney General of NSW v HRM [2016] NSWSC 1189. 20. The Tribunal conducted another review on 11 November 2016 and on 19 May 2017. As a result of the latter review supervision was reduced to 12 hours per week, in part, at least, as a result of the lack of resources or funding by New Horizons. In October 2017, the regime under the National Disabilities Insurance Scheme (NDIS) commenced. 21. On 23 November 2017, the Court considered an application for a further Extension Order for HRM. The Court (Bellew J) granted an Extension Order for a period of a further 12 months: Attorney General (NSW) v HRM [2017] NSWSC 1572. On 28 November 2017, the subsequent Tribunal review noted that a guardianship order had been made. 22. A further Tribunal review occurred on 29 May 2018. 23. On 13th February 2019, the Court granted another Extension Order: Attorney General (NSW) v HRM bht Thompson [2019] NSWSC 76. In the course of his reasons for judgment, Wright J referred to a number of incidents in which the defendant made inappropriate sexual comments and/or was involved in inappropriate sexual conduct. This included comments to the defendant's driver, provided by New Horizons, and the view the defendant expressed that he desired to go to a brothel. It also involved the defendant informing a caseworker that he "had a chance of being with her". 24. On 1 July 2018, the funding for the defendant's care and support was transferred to the NDIS. In August 2018, the defendant was involved in an incident of aggressive behaviour with the caseworker from New Horizons. In that behaviour he yelled at the caseworker and aggressively placed his fists in front of her face. The caseworker thereafter refused to provide support to him. 25. On 13 November 2018, a further Guardianship Order was made and on 13 February 2019, as earlier stated, Wright J issued a further Extension Order. 26. There was a Tribunal review on 5 March 2019 as a result of which there was a removal of the condition to be participating in anti-libidinal medication and, in lieu of that condition, the defendant was required to see his psychiatrist once a month. 27. On 27 August 2019, a further review was undertaken by the Tribunal. In September 2019, the defendant obtained his driver's licence and purchased a motor vehicle. Between 9 and 12 January 2020, the defendant, without prior permission and contrary to the conditions under which he was to operate, left New South Wales and visited Queensland. This was for the purpose of seeing his daughter. 28. On 4 February 2020, a further review was undertaken by the Tribunal, which noted that the last psychiatrist appointment was at the end of October 2019; that there had been breaches of the conditions of accommodation and of leaving the State; and that the defendant had refused support. 29. In March 2020, New Horizons told the provider under the NDIS scheme that the defendant was no longer under the order and did not require support. On 19 May 2020, New Horizons ceased services. 30. On 25 May 2020, the Community Safety Program organised a case conference with stakeholders to seek funding for the NDIS plan being reinstated. That funding was reinstated on 10 June 2020 and included options for behavioural support; clinical services; and assistance with housing. 31. On 30 July 2020, the defendant received a threatening letter at the address at which he was then living. As a consequence, in August 2020, the defendant began living with his brother in Young. That accommodation was such that the defendant was living out of his car. 32. On 25 August 2020, Ms Subhasree (Sue) Roy commenced as the defendant's case manager and another group ORS, which was NDIS registered and funded, provided services to the defendant. Essentially, these services were provided through a behaviour support consultant, Ms Celeste Cari. 33. Mr HRM had been allocated a behaviour support practitioner to develop a behaviour support plan, all of which was funded and resourced through the NDIS. Those services commenced in August 2020, bearing in mind that the services provided by New Horizons had ceased in about May 2020. 34. From about 25 August 2020, the defendant commenced to reside with his brother David. On 24 September 2020, police spoke with the defendant. 35. The Police issued him a warning as a result of a complaint made by a female employee in a café. This issue has been mentioned earlier in these reasons. 36. The complainant, who was an employee at the café, considered that she had been harassed during the time that the defendant utilised the café or frequented it. The defendant provided the worker with flowers and, otherwise, made advances or spoke with her allegedly inappropriately. 37. The details of that exchange are not before the Court. However, the nature of the Police report on the conduct allows the Court to draw the inference that the discussion and approach was inappropriate and harassing. 38. In January 2021, the defendant purchased land and a caravan after borrowing money from his brother. 39. On 9 February 2021, the defendant's driver's licence was suspended. Thereafter the interaction between the defendant and his case managers and/or psychiatrist was restricted as a result of the coronavirus restrictions. For example, on 23 February 2021, the Tribunal conducted a review by audio-visual link. 40. Similarly, on 22 April 2021, 31 May 2021 and 7 and 23 June 2021, audio-visual link interviews were conducted with his psychiatrists: his treating psychiatrist, Dr O'Dea; and two sessions on the phone with Dr Carollyne Youssef. 41. In the meantime, in March 2021, Ms Cari of ORS was required to implement a new Behaviour Support plan and provide clinical support to Local Health Services Australia ("LHSA"), another NDIS funded service. There were monthly meetings with the Community Safety Program from March 2021. 42. On 29 and 30 March 2021, incidents were reported. There was an incident with Ms Gorman of LHSA. It involved inappropriate sexualised comments by the defendant and conduct whereby the defendant tried to obtain Ms Gorman's personal details. 43. On 9 May 2021, the defendant had his licence reinstated. On 14 July 2021, he returned a negative urine drug screen test and, on 3 August 2021, the Tribunal conducted its latest review. That referred to drop-in support from the LHSA, face to face, every Wednesday and phone contact once or twice per week. In September 2021, the defendant was vaccinated. 44. Lastly, in terms of the surrounding events, the funding for the NDIS plan expires or ceases on 27 February 2022. However, there is nothing to suggest that the NDIS funding would not continue thereafter or be renewed, although there is some suggestion as to a level of instability in the availability of funding. 45. On 12 August 2021, the Court (Walton J) presided over the preliminary hearing and ordered the appointment of two experts, in accordance with the Act. The Extension Order ordered by Wright J on 13 February 2019 was for a period of two and a half years and was to expire on 12 August 2021. On 12 August 2021, Walton J issued an Interim Extension Order, which expired on 11 November 2021. 46. The expert reports ordered by the Court are now before the Court. There are other expert reports, but those ordered in the preliminary orders were the reports of Dr Andrew Ellis, psychiatrist, being a Report of 10 October 2021; and of Mr Patrick Sheehan, psychologist, being a Report dated 4 October 2021. 47. The material before the Court is extensive. Much of the material is historic and is summarised either in one or other of the earlier judgments granting an Extension Order, to which the Court has already referred, or in the judgment delivered by Walton J in relation to the Interim Extension Order: Attorney General for New South Wales v HRM (Preliminary) [2021] NSWSC 1222. 48. His Honour, Walton J, issued orders on 12 August 2021 and reasons for decision on 27 September 2021. It is unnecessary to repeat all of the evidence otherwise summarised and/or recited in the reasons for judgment of Walton J of 27 September 2021 and the earlier judgments on the grant of an Extension Order. Much of that material is attached to affidavits which are before the Court. 49. The plaintiff relies upon the Affidavit of Elizabeth Blomfield, sworn 11 June 2021 and the second Affidavit of Elizabeth Blomfield, sworn 29 July 2021 and the Exhibits thereto. Further, as is probably obvious, the plaintiff relies upon the two expert reports of 10 October 2021 and 4 October 2021 respectively. Each of the experts gave oral evidence. 50. Before dealing with the expert reports, it is necessary to understand that the defendant opposes the Extension Order essentially on the basis that the plaintiff, he says, has not established unacceptable risk and, in particular, the defendant submits that there has been no sexual offending for 15 years. Further, the offending was one offence on one occasion only. Further again, an important element in the offending behaviour was the excessive consumption of alcohol or drugs from which the defendant has been abstinent with one or two exceptions. 51. Not only has the defendant not committed sexual offending in 15 years, but he has not committed any offence of violence in 14 years, which is a fundamental alteration in the pattern of behaviour of the defendant between the period when the defendant was aged between 23 and 34. The defendant submits, through counsel, that this is a result of the growing maturity of the defendant and his growing control over his behaviour and his tendency. The defendant also has significant family support and effective support services. 52. Fundamentally, the defendant submits that the Court could not be satisfied: first, that there is an unacceptable risk in the absence of an Extension Order; and, secondly, that there is not a less restrictive means to manage adequately the defendant's risk. 53. At this stage, the Court is not seeking to summarise all of the submissions of the defendant, but it is necessary to understand the major issues in the application in order to understand the relevance of the summary of the expert reports. The Court will deal, later in these reasons, with the statutory regime under which the orders are capable of being granted. Expert opinions 1. Apart from the expert reports provided as a consequence of the Court's Interim Orders, the plaintiff relies upon a Risk Assessment Report of Professor Susan Hayes and also relies upon the evidence of Mr James Wu, psychologist, who is the Team Leader at the Community Safety Program supervising the defendant. 2. The Report of Dr Ellis of 10 October 2021 is before the Court. [2] Dr Ellis refers to the incident associated with the young worker in the café or, as described in the course of the proceedings, the "lunch shop". The incident is described in the following manner: "He [the defendant] reported to me about an incident in September 2020 where police had contacted his caseworkers and approached him about his interactions with a young woman in a cafe or 'lunch shop'. He said that he had bought flowers for someone else who had cut his hair in the past. He learned that this woman had a partner and so decided not to give her the flowers. He said that he wanted to put the flowers in the shop where the young woman worked. He said that the woman took the flowers out of his hand and he left. He did not think there were any problems with his interaction, but accepted that he would not further interact with this young woman. He said that he was generally wary of going into the larger town where this cafe was located. He reported to me about an incident in March 2021 when he was reported to have made sexualised remarks to his caseworker when he was taken to an interview with Professor Hayes. He said that it was 'no fun' going to Sydney. He said that he apologised. He did not wish to talk about his previous offences. He said 'I was some stupid bastard who got suckered in to get out through mental health'." [3] 1. Dr Ellis expressed the opinion that, in terms of the diagnosis of the defendant, his diagnostic considerations remain unchanged from previous reviews. Dr Ellis expressed the view that the defendant met the criteria for an Intellectual Disability; for an Alcohol Use Disorder; and for a Personality Disorder, each of which is assessed using the criteria in DSM-5. In the course of expressing his opinion on the appropriate diagnoses, Dr Ellis made the following comments: "There is some evidence of conduct disordered behaviour in childhood, however this is not well documented or severe. His adult criminal record indicates persistent impulsive and irresponsible acts. This would include repeated speeding offences last year. There would be sufficient information to conclude adult antisocial personality traits, and if clear evidence of conduct disorder in childhood, antisocial personality disorder. Either condition is consistent with the report of inconsistent and physically abusive upbringing. An additional consideration are [sic] paranoid personality traits such as persistent suspiciousness of the motives of others, although notes of this are less prominent. There remains insufficient evidence to firmly conclude a paraphilia or psychosexual disorder. He does not report arousal to pain or humiliation of others to clinicians who will assess him. His sex offences occurred on one occasion and of a type associated with intoxication and impulsive opportunity. His consistently expressed sexist attitudes are in keeping with his personality style. There is some evidence of sexual pre-occupation, with ongoing comments to staff about the appearance of females in public. No evidence of pathological sexual behaviour (paraphilias) has been noted since the last review. There is no further information to suggest or definitely exclude a psychotic disorder. Previous notes have suggested potential persecutory delusions and hallucinations. He potentially has intermittent symptoms consistent with delusions and hallucinations that can be more or less prominent. Persons with intellectual disability are at increased risk of developing mood and psychotic disorders, and the expression of symptoms is often not typical. The reasons for him leaving Sydney abruptly after decline in self care, and the episode of contacting a young woman in a lunch shop are not well explained by his account or the notes, and might indicate persecutory or erotomanic thinking associated with psychosis. At this review there were no frank psychotic symptoms elicited, however the interview was limited. There was a general suspiciousness which might reflect a paranoid personality style as an alternative consideration." [4] 1. In dealing with his opinion as to the defendant's risk of serious harm to others, Dr Ellis referred to the STATIC-99R testing, which placed him in the "above average" risk category for sexual re-offence. However, as is known to the Court and as the report indicates, such static reporting does not alter depending upon changes in the person assessed as a result of therapeutic progress or other learned behaviour or growing maturity. Dr Ellis does express the opinion associated with the time in the community in which the defendant has not offended. Dr Ellis said: "As he has now been offence free in the community for eight years (albeit under supervision and a brief period in a general psychiatric hospital) there are research grounds to consider his risk as scored by this scale [STATIC-99] lower. As a group, persons with periods of community tenure offence free for 5 years have about half the rate of offending as those with the same score at the time of release. There is no information which would suggest increase in risk on this measure." [5] 1. Dr Ellis makes reference to a number of general propositions relating to risk factors and, relevantly to the defendant, makes the following comments: "Risk factors specific to sexual offending include targeting a stranger, using physical force during the assault and a history of general offending. He [the defendant] has been found with weapons on at least two occasions during his other historical offences. His past physical and sexual aggression has been of the kind where physical and psychological injury could be expected. These specific factors are historical, therefore do not alter with treatment or rehabilitation. Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. HRM does not clearly evince this in the current clinical evaluation or review of his offence history. During a period of non-compliance with antilibidinal medication in 2016 there appears to have been an escalation in sexual comments, and one episode of disinhibited sexual behaviour. This might have indicated deviant sexual arousal. The discontinuation of medication for at least the past year without a demonstrable change in his sexual behaviour renders it less likely that paraphilic arousal was driving his past offending. His consistent reticence to discuss his sexual history and offences renders the appraisal of this factor problematic." [6] 1. As to the improvement in conduct and condition of the defendant, Dr Ellis expressed the following opinion: "He [the defendant] has had exposure to treatment and rehabilitation which is yet to sustainably moderate this risk without a legal framework to support it. He has spent eight years in the community with opportunity to engage in seriously harmful behaviour but has desisted with the assistance of professional support. He appears to respond well intermittently to the structure of his placements, assistance with living skills, literacy and problem solving skills. At other times he is frustrated and disengages. Attendance on his psychiatrist for medication has fluctuated. His participation thus far has been motivated by legal conditions. It is not likely that he would continue to attend diligently on a voluntary basis. A factor outside of his control is the uncertain state of forensic disability services and coordination with forensic mental health services, which have become ever more fractured since I expressed concerns about this in my initial assessments of HRM. … Another factor has been his fluctuating mental state with possible psychotic symptoms at times. This appears more stable at present, however will require ongoing monitoring. In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, HRM would fall into a group of persons with a risk of endangerment that is now moderate and closer to a theoretical average offender, largely owing to response to supervision and support. He would present with a risk profile equivalent to many forensic patients, or persons in the community managed by mental health or disability services. With his current management plan his risk has been contained, evidenced by remaining offence free to this point with the use of recall to hospital only needed once when emergent issues were identified. There would be clinical grounds to continual clinical intervention to effectively manage this risk as most contributions to his risk profile are long term issues. Clinical support also acts to improve his risk profile." [7] 1. Dr Ellis refers to the terms of his current forensic order which compel but do not enforce or monitor urinalysis, breath testing, attendance on rehabilitative programs and notably has a recall power where he can be returned to prison or hospital in the event of non-compliance with conditions or a deterioration in his risk status. The report, most relevantly, made the following comment: "He [the defendant] is subject to financial management which limits spending on gambling, alcohol or illicit substances. Critical items for managing his risk are supported accommodation, disability support staff, forensic psychiatric review, financial management and substance use monitoring. Ideally there would be a central point of case management with links between disability and health services. Ultimately risk is managed by the type of clinical care provided, rather than specific legal orders. His current care is a mix of general NGO disability services, government disability services, general health services and a private forensic psychiatrist and psychologist. Legal orders may serve to facilitate this clinical care. At this point it is not considered likely he would voluntarily accept the recommended risk management strategies that are currently in place." [8] 1. The Expert Report of Mr Patrick Sheehan of 4 October 2021 is also before the Court as part of Exhibit JP1. [9] 2. The opinions expressed by Mr Sheehan, the Forensic Psychologist, are to similar effect. Mr Sheehan refers to the relationship developed between the defendant and the psychologist, Dr Youssef. 3. Mr Sheehan described interaction between HRM and Dr Youssef as evidencing impaired appraisal of interpersonal dynamics and disclosing a tendency "to sexualise non-sexual interactions with women, assuming reciprocity where it does not exist". In Mr Sheehan's view, "this is an offence-paralleling behaviour and is of concern". Nevertheless, Mr Sheehan noted that discussions with support workers, thereafter, revealed no further concerning comments. 4. The existence of regulations relating to COVID-19 meant that, at least for some of the period under review, there was limited contact allowed with anybody, but, in particular, between HRM and his caseworkers. This was exacerbated by the isolated nature of his accommodation. Mr Sheehan discussed whether HRM has social connections in the remote area in which he was living towards the end of the period leading up to these proceedings and drew the inference that he had some social connections in his area as a result of a comment as to the fact that he would normally be at friends' houses. 5. Further, Mr Sheehan expressed the view that HRM had chaotic and impenetrable use of language and suggested that it could indicate thought disorder. However, it is possible that it could be attributable to impaired verbal intellectual skills. Mr Sheehan then referred to his earlier Report (30 September 2017) in which he expressed the view that HRM does not suffer from a psychotic illness and that, notwithstanding that view, he could not exclude the possibility. Mr Sheehan then commented: "However, on revision of the material and HRM's presentation, I am increasingly persuaded that thought disorder is present, although I cannot offer a categorical diagnosis." [10] 1. Mr Sheehan discusses HRM's criminal history; the lack of material dealing directly with HRM's institutional adjustment; HRM's supervision history under the Release Orders and Extension Orders; and the supervision of the Tribunal. In so doing, Mr Sheehan dealt in some detail with the reports from caseworkers and arising from his supervision. 2. Under the heading "Consideration of Risk of Harm", Mr Sheehan noted that the Tribunal had issued several determinations that it was satisfied that there were reasonable grounds for believing that the present arrangements for care, treatment and control had been necessary and sufficient for the protection of others from serious harm. Further, Mr Sheehan noted the reductions in the level of restraint that had been applied, in particular the removal of the requirement for anti-libidinal medication. 3. Mr Sheehan, correctly and appropriately, notes that it is not scientifically possible to predict accurately whether or not an individual offender will or will not actually reoffend. The task of the Court in this application is not to predict, accurately or otherwise, the reoffending but to assess the risk of reoffending and the consequence of reoffending, if it were to occur. 4. The report of Mr Sheehan noted that there is no known history of self harm or suicidal ideation. It also noted that HRM has a documented history of physical violence, including breach of Apprehended Violence Orders, assault with intent, possession of a prohibited weapon, assault officer in execution of duty, and assault occasioning grievous bodily harm. Mr Sheehan noted that this is a pathway towards causing serious harm to others. 5. After explaining the actuarial tool used for assessing the risk of violence in forensic clients (the Violence Risk Scale, "VRS") and that it assesses both static and dynamic risk factors to provide a comprehensive evaluation of the risk for violence, Mr Sheehan noted that the VRS estimate is within the low range, relative to the sample population in the study. Nevertheless, there are significant qualifications on the use of that risk, including that the scale does not account for factors and circumstances that are unique to each individual and may not have been captured within the normative group that gave rise to the testing levels. 6. In his Report, Mr Sheehan sees no reason to change the VRS risk estimate from the Low Range. The Report notes the less stable living conditions and the partial cooperation with supervision, but recounts that there is or seems to be no identifiable changes that would justify an increase in his score. Mr Sheehan described the defendant in the following terms: "He [the defendant] remains irritable and suspicious, but there have been no further acts of violence (other than occasional verbal abuse) in the eight year period since he was released to community supervision." [11] 1. Mr Sheehan then dealt, in his Report, with the defendant's risk of sexual offending. The Report explains the difficulties associated with static and dynamic risk assessment and recounts that the static assessment remains current and will continue at the same level unless further sexual offences are committed. The static assessment rates HRM's risk of sexual reoffending at above average. 2. The tool utilised for assessing dynamic risk factors was the Risk of Sexual Violence Protocol (RSVP), which is a structured, professional judgment tool measuring an offender against 22 dynamic risk factors deemed important in the scientific and professional literature. Part of the psychological assessment involves a professional assessment of the person involved, in this case, HRM. 3. The report noted that HRM acknowledges his sexual offence in general terms "but his impaired verbal functioning and reluctance to discuss the issue does obscure a clear view of his attitudes around this". The report noted HRM's "serious problems with self-awareness" and also noted that, as a consequence, realistic self-appraisal is unlikely and his perception of how he relates to other people is confused. This confused appraisal is relevant to his sexual offending. 4. Mr Sheehan could find no evidence to suggest the existence of a Paraphilic Disorder and, in the view of the author of the Report, has no sexually deviant interests. Mr Sheehan raises the possibility that HRM's tendency to read sexual availability into non-sexual relationships may be partly influenced by HRM's disordered thought. Without reciting large sections of the Report, Mr Sheehan referred to the contextual and environmental aspects of risk and made the following comment: "When considering risk of reoffending, it is important to take into account the contextual and environmental conditions of the persons' [sic] community life, as well as the personal characteristics of the offender. This consideration is of particular importance when assessing offenders' [sic] with intellectual disabilities, such as HRM, where environmental conditions are a critical aspect of offending (or non-offending). Assessment tools such as the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitation who Offend – Sexually (ARMIDILO-S) … acknowledge this factor and consider specific environmental factors that are considered to have a significant influence on the risk of recidivism for intellectually disabled offenders taking into account the role disability services play in supporting this client group in the community. … Like most offenders, HRM's history does not suggest that he would sexually act out on every opportunity. Given his history, it would perhaps be possible that he has exhibited these risk factors on many other occasions without sexually offending. There are likely to be many instances where HRM shows better judgement. The future risk is chronic in nature in that over time as he was exposed to these risk factors without intervention or interruption, there would be less impediments to a sexual offence." [12] 1. In describing the overall risk in light of all of the information available to Mr Sheehan, he expresses the view that HRM presents "a moderate risk of serious harm to others by way of sexual offending". Mr Sheehan noted that such an estimate is higher than the estimate given by Mr Sheehan in his assessment in 2017. 2. This increase in the likelihood is as a result of HRM's circumstances being less stable and his movements and activities being less visible. It pays regard to Mr Sheehan's perception that his engagement with supervision and/or support is partial, now further aggravated by geographical isolation. It takes into account the absence of the anti-libidinal medication or mitigation to address risk, arousal or alcohol or assisted psychiatric care. The Report then makes the following comment: "The further detail of sexual boundary confusion is of concern to me, not because it has been aggressive (it has not), but because it represents genuine misinterpretation of the motives of women in HRM's orbit, where he attributes sexual interest entirely out of context. These repeated events have been well and assertively managed by trained professional support persons. In my view this is an offence paralleling behaviour that has not resolved with the passage of time. His risk may escalate in the event that he further rejects supervision and support, that his life becomes destabilised through breakdown of key relationships and living conditions. If multiple stressor (such as family problems, financial problems, or conflict, motor vehicle problems, accommodation problems) coalesce and he decides to consume alcohol; that loneliness, intoxication, sexual arousal and negative mood intersect with him coming into contact with someone to whom he is sexually attracted, but who spurns his clumsy advances, in circumstances where there is no one else nearby to intervene. He may misinterpret the victims [sic] behaviour as sexually provocative and feel that he is entitled to finish what he started. He may be entirely focused on having his needs met and be able to screen out the distress and objections of the victim." [13] 1. After dealing with the potential protective factors, being the personal strengths that might decrease or offset the risk of violence, Mr Sheehan states his conclusions and recommendations. He refers to diagnoses of Intellectual Disability Substance Use Disorder, with Anti-Social Personality features. He refers to mixed evidence of psychotic symptomatology in the form of disordered thought and possible delusional beliefs. 2. The defendant's offending is, according to Mr Sheehan, best seen as an artefact of the interplay between these various factors. Mr Sheehan refers to his management through the Tribunal, the CJP/CSP and guardianship regimes and the transitioning to an NDIS funding model. Mr Sheehan notes that HRM has lived in the community, except for a very brief period of containment in a mental health unit in 2016, without causing serious harm. Further, there is no evidence of alcohol use, at least since 2016. 3. Mr Sheehan notes that the overall evidence suggests "only partial engagement with the systems of support and containment around him and HRM has not benefited from case management to the degree that he might have, had he been more responsive to intervention". The Report also refers to the relationship with support staff being fragile, being sustained only if they do not offer challenges to HRM and do not interfere with HRM's autonomy. 4. Note is made of recurring observations of sexually inappropriate comments. Most relevantly, the Report makes the following comment: "Were HRM to cease being a Forensic Patient, he would lose the benefit of MHRT oversight. His case management under the CSP will also be lost, but could be re-instated temporarily if a separate referral is made. HRM will remain eligible for NDIS funding which requires a detailed application to be made annually. The Public Guardian's involvement will remain unchanged, having oversight of his finances (Trustee), and decisions about services he will be provided. In my view, transition from being a forensic patient will inevitably come with a weakening of the system that has supported and contained HRM thus far. The evidence provides little confidence that HRM would willingly engage with support systems planned by CSP and funded by NDIS in the absence of a strict mandate to do so. He is only partially compliant even as a forensic patient, which is a more rigorous system purposefully designed to prevent harm. There is the possibility of seeking restrictive practices through Guardianship … but there are no such practices permitted in the currently active Guardianship Order. Such practices are decided in the NCAT and only as a last resort. HRM's NDIS services may require further authorisations to use restrictive practices. Having regard to all the information, I would consider HRM's current management (including his status as a forensic patient) as the least restrictive form of management to adequately manage the risk of serious harm posed by HRM given his current level of estimated risk." [14] 1. It is unnecessary to summarise and/or recite all of the abundant material before the Court in relation to the defendant. There are a couple of matters that ought to be repeated. In the course of its decision of 19 August 2021, the Tribunal quoted a passage from the CSP Report before it. 2. The team leader for the CSP was Mr James Wu, who gave evidence in the proceedings before the Court, and the Case Manager was Ms Roy. The quote bears repeating and is in the following terms: "HRM's primary risk and needs related to his difficulties with forming healthy relationships with others, engaging in effective coping with stressors in his life and managing his tendency to make decisions with little forethought and problem-solving. These are essential skills required for effective adaptive functioning (e.g., socialisation and conceptual skills) and thus are associated with his cognitive impairment and underdeveloped skillset. HRM is likely to experience significant loneliness through chronic periods of social isolation, with limited practice and opportunity for appropriate relationships and sexual expression. This likely accounts for the function and precipitated HRM's inappropriate sexualised comment about women and towards the support staff." [15] 1. Other aspects that require repeating include the circumstance that, when asked whether CSP would continue to case manage HRM in the absence of an Extension Order, the response from CSP was that the case manager provided by the CSP only exists for the duration of HRM's forensic patient status. If HRM's status as a forensic patient expired and support from CSP was required, there would be a need for a referral. However, the NDIS-funded and mainstream services, such as NSW Trustee & Guardian, would remain unchanged irrespective of HRM's forensic patient status. [16] 2. Two other aspects need to be recounted, in part, because they had particular relevance to the proposal and/or submissions of the defendant in relation to the Extension Order. By way of further background, and as has been noted in the foregoing quotations from the reports of Dr Ellis and Mr Sheehan, part of the difficulty envisaged by the experts is the inability or reluctance of HRM to discuss his sexual needs and circumstances. In cross-examination, each of the experts was referred to the contents of an email from Ms Jeanette Gorman of Health Services Australia to Ms Roy of the CSP, which contained the following extract: "Rick did have the opportunity to talk with [HRM] about any personal needs he may have, sexual, while I gave them a few minutes of privacy. Rick stated [HRM] said he was fine in that area not needing any services, with Rick informing [HRM] that at any time he would like to explore that option all he had to do was ask or he would touch back on the subject at a later stage. Rick and I discussed this topic on the way to [HRM]'s coming up with a plan for [HRM] not to feel any embarrassment about the topic. [HRM] appeared to take the conversation in his stride with no embarrassment shown. … In summary Rick and I have had a very positive experience with [HRM], he is, like everyone in hopes that lockdowns in Sydney be lifted, even exploring work permits. He has thought about what he needs to do in order to move forward making positive decisions for himself. [HRM] did make mention of the fact he was lacking in company and appeared to enjoy the time he spent with us." [17] 1. The essential aspect of the cross-examination to which the experts were directed in relation to these matters were two particular aspects that require noting. First, it was said this evidences a contrary view as to the capacity of HRM to discuss his sexual needs; and the second was the perception of one or more of the experts that the carers were guarded in their approach to HRM and careful not to confront him about matters that were of importance. 2. Other than the foregoing quote, there is no evidence as to any improvement in HRM's capacity to deal with sexual issues, more generally. Unlike that which was sought to be portrayed to the experts, I do not take the view that the foregoing discloses a capacity to discuss at length, or in detail, or in ways that are other than cursory, sexual issues with which HRM is suffering or with which he is concerned. 3. The foregoing quote makes clear that the time taken for this discussion was within time being given for a "few minutes of privacy". Secondly, the response by HRM tends to suggest a cursory and dismissive approach to the issue of sexual needs rather than a capacity to discuss them, either in detail or in relation to particular concerns. There is no evidence to suggest that the invitation by Mr Groth (referred to as "Rick") to "touch back on the subject at a later stage" was taken up by HRM. 4. One of the other issues upon which the defendant relied was the establishment of Behaviour Goals as part of HRM's behaviour support plan as disclosing an ability, it was submitted, for appropriate regulation of HRM's difficulties without the need for an Extension Order. However, the Behaviour Goals that are outlined, [18] amongst other things, involve the participation of HRM in appointments with the Community Safety Program, which is available only as a forensic patient or under special arrangement, and other appointments required by the Mental Health Tribunal; the reduction of the sexualising comments and inappropriate behaviour, to be achieved by psychological intervention and support; and improvement in HRM's independent living skills. 5. I do not see that Behaviour Program, or its availability, as being inconsistent with continuation of HRM as a forensic patient and the goals identified are consistent only with his continuation as a forensic patient. I have regard to the fact that the Behaviour Goals could be amended if HRM's status as a forensic patient was terminated. Legislative Scheme 1. The application for an Extension Order is governed by the terms of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). The Act replaced what was previously Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the provisions of which were similar, if not identical, to the provisions of the Act and the established principles governing the Court's jurisdiction were originally dealt with under the Schedule. 2. Section 72 of the Act defines a forensic patient as a person who fits one of the four following criteria: "(a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place, (b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal, (c) a person who is the subject of a special verdict of act proven but not criminally responsible and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by a court or the Tribunal, (d) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section." 1. The provisions of s 72 are within Pt 5 of the Act, which deals, generally, with forensic patients and correctional patients and Pt 5 has provisions dealing with its objects [19] and provisions relating to the treatment care and detention of patients. [20] The objects of the Part are: to protect the safety of members of the public; to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment; to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders; to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment; to give an opportunity for those persons to have access to appropriate care; and to protect the safety of victims of forensic patients and acknowledge the harm done to victims. [21] 2. Once a person is a forensic patient the Mental Health Review Tribunal (in these reasons referred to as "the Tribunal") is required to carry out a review as soon as practicable after the limiting term is nominated by a court; or after a court finds that a defendant is unfit to be tried; or the entry of a special verdict. Such a review is required in intervals of six months for forensic patients. A different time frame exists for correctional patients. 3. The foregoing time frame does not limit the timing at which a review may occur, but requires regular review by the Tribunal. The current application before the Court is for an extension of HRM's status as a forensic patient and such orders may be made by the Court, pursuant to the terms of ss 121 and 122 of the Act. 4. Since the plaintiff has made an application under Div 2 of the Act, the Court is required to deal with the criteria for the extension order which are set out in s 122. The terms of s 122 of the Act are as follows: "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." 1. As can be seen from the foregoing, the Court is required to be satisfied to a high degree of probability that the forensic patient, in this case HRM, poses an unacceptable risk of causing serious harm to others if he were to cease to be a forensic patient and that such a risk cannot be adequately managed by other less restrictive means. 2. Determining whether a person poses an unacceptable risk involves evaluating the risk of offending and the consequences of the offending, if it were to occur. Thus, the Act expressly provides that the Court need not be satisfied on the balance of probabilities, or beyond reasonable doubt, that the person will cause serious harm. 3. Nevertheless, the Court is required to come to a view that the risk of a person causing serious harm is real and not minuscule or insignificant. 4. As it has been described in this and other contexts, the determination that a risk is unacceptable involves the combination of the likelihood of the risk manifesting and the damage that would be caused if the risk were to manifest. As a consequence, a real risk of sexual offending that would cause significant or irreparable harm may be an unacceptable risk, even if the risk of reoffending is low. On the other hand, a high risk of reoffending in which the offence is such that it would cause little or no harm may not be an unacceptable risk. 5. The Act requires that the Court determine whether the defendant is an unacceptable risk and, in so doing, requires the Court to evaluate the likelihood of the risk of harm manifesting and the harm that would be caused by the manifestation of the risk. 6. The Court is required to be satisfied that the defendant poses an unacceptable risk to a high degree of probability. In the foregoing it is necessary to make clear that the risk is an unacceptable risk of causing serious harm to others. Serious harm, in that context, is something more than actual bodily injury but may be less than grievous bodily harm. The harm, if it is psychological harm, must be more than fear or panic, which may be transient and are not, ordinarily, classified as "harm". [22] 7. Once the Court is satisfied of the criteria prescribed by s 122(1) of the Act, the Court may determine the application by making the Extension Order or by dismissing the application. [23] In determining whether to make the extension order, the Supreme Court is required to have regard to: the safety of the community; reports received from persons appointed under s 126(5) of the Act to examine the forensic patient; the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(b) of the Act; any other report of a qualified psychiatrist or psychologist provided to the Court; orders and decisions of the Tribunal with respect to the forensic patient; any report of the Department of Health or Commissioner of Corrective Services and Department of Communities and Justice; the level of compliance by the forensic patient with the obligations to which the patient has been subject; the views of the Court imposed when the limiting term or existing Extension Order was imposed; any other information relevant to the risk that the forensic patient will in future cause serious harm; and any other relevant matter. The term of an Extension Order is not more than 5 years from the day on which it commences Defendant's Submissions 1. The written submissions upon which the defendant relies are extensive and have been most helpful. While it is unnecessary to repeat the submissions of the defendant at length, it is appropriate to summarise the Executive Summary provided by the defendant. 2. Essentially, HRM submits that, while the technical requirements as to timing and jurisdiction have been satisfied, none of the substantive requirements for the making of an Extension Order have been satisfied. The submission is that the defendant does not pose an unacceptable risk of causing serious harm to others. 3. The defendant relies upon the following propositions to establish that there is not an unacceptable risk of causing serious harm to others: 1. It has been fifteen years since the index offence and HRM has not reoffended, even though he has been in the community with little direct supervision since 2013; 2. HRM sexually offended on one occasion only; 3. The sexual offence or a critical element of the sexual offence depended upon excessive consumption of alcohol and he has been abstinent from alcohol since his release from gaol (with two minor exceptions, one in late 2013 and one in September 2014 ) and exhibits no interest in consuming alcohol again; 4. HRM has not committed any offence of violence in 14 years, which is in stark contrast to the pattern of offending between the ages of 23 and 34; 5. HRM has matured since the time of the offence upon which the status as a forensic patient depends and has achieved a number of significant pro-social goals, including obtaining a driving licence, purchasing property and setting up a business in scrap metal dealing; 6. HRM has no tendency towards sexual deviancy or paraphilia, sexual deviancy being a significant risk factor for recidivism; 7. HRM has significant family support; 8. HRM has effective support services that will continue irrespective of his status as a forensic patient; 9. HRM is motivated to achieve independence and positive life goals and offending would run contrary to those goals; 10. HRM has demonstrated use of effective risk strategies whilst living in the community, including by avoiding negative peers; 11. The Tribunal has recognised the decrease in risk by progressively reducing the level of restraint applied to HRM in conditions it has imposed upon him. 1. The defendant also relies upon what he submits is HRM's choice to ignore the forensic order, in a positive sense. In other words, the defendant counters the submission of the plaintiff that emphasises the effect of the forensic order that has existed by submitting that HRM's behaviour is principally affected by concerns other than the mandatory nature of the forensic order, which he has often chosen to ignore. 2. The defendant has only ever been partly compliant with the conditions imposed upon him by the Tribunal and, it is submitted, the evidence does not establish that those conditions drive his behaviour. Rather, his decision not to reoffend is motivated by his desire to achieve independence, to involve himself in an intimate relationship and to retain contact with his daughter. In so submitting, the defendant relies upon the Behaviour Support Plan, to which earlier reference has been made in these reasons. 3. Further, the defendant submits that when support services have stopped or declined, it has made little or no difference to the defendant's behaviour. He has not, during such a period, binged on alcohol or, with the exception of the two events to which reference has already been made, consumed any alcohol. He has not sexually offended during that time or at all, since the index offences and he has not participated in fights. 4. The defendant moved to the country which was a pursuit of his own goals; obtained his driver's licence; and bought property. 5. Given his isolation and the unavailability of supervision, it has not been the case managers and the Tribunal or any orders made by it that stopped the defendant from committing another sexual offence. Given the evidence that the defendant behaves impulsively, the absence of offending was, it is submitted, a result of the defendant's self-regulation and decision-making. 6. In answer to the plaintiff's reliance upon the expert opinion that HRM poses a moderate risk of causing serious harm, the defendant points to the fact that each of the psychologists and psychiatrist, who have authored the reports, had limited contact with the defendant; the interviews were conducted by audio visual link, in part as a result of the COVID restrictions; HRM participated, it is said in those reports, unwillingly and partially; each of the experts relied upon actuarial risk assessments; the risk assessments are of limited predictive value and the results should be treated with caution; and the Court should not defer to the opinion of the psychologists and/or psychiatrists in circumstances where the factual evidence does not support the conclusion reached. 7. Lastly, the defendant relies upon the availability of other less restrictive means, a criterion of which the Court is required to be satisfied, pursuant to the terms of s 122(1)(b) of the Act. The defendant submits that if the Court were to decline to make an Extension Order, HRM would continue to receive the services of his support staff through the Local Health Australia services. 8. This would provide one day per week of face-to-face contact and twice weekly phone contact; he would continue to receive the benefits of a behaviour support practitioner; he would continue to have access, voluntarily, to the services of his forensic psychologist; and, to the extent application was made and granted, the defendant could gain access to support from the CSP on an interim basis, once the referral was made. Consideration 1. As was made clear by the defendant in his submissions, or in submissions on his behalf, it has been 15 years since the commission of the index offence during which time HRM has not reoffended. During that time HRM has lived in the community, with one short exception, and the level of supervision implemented has diminished over time. 2. The determination of whether a less restrictive means adequately manages the risk must be understood from two perspectives. First, it is for the plaintiff, the Attorney General of New South Wales, to prove on the balance of probabilities that the risk cannot be managed adequately by less restrictive means. Secondly, less restrictive means does not refer to the implementation of supervision but the availability of supervision. 3. In other words, the fact, and it is the fact, that the supervision and restrictions imposed upon HRM under the currently operating Extension Order are not particularly onerous does not form the basis of comparison with other means that are available. The basis of comparison is the capacity of the Tribunal to impose conditions and the legal restrictions that are capable of being imposed under the regime. 4. Thus, plainly, the system urged by the defendant, being a combination of NDIS funded services, family support and other support services is a less restrictive means than that which applies under an Extension Order or would apply were an Extension Order to issue. The mandatory nature of the order requiring the defendant to remain a forensic patient is that which renders the Extension Order more restrictive than a combination of the services that may be voluntarily obtained by the defendant. 5. However, the fact that the defendant has chosen to ignore the orders applicable to him under the mandatory regime imposed as a consequence of his status as a forensic patient does not, in my view, lessen the necessity for a mandatory regime. 6. The fundamental difficulty with the submission of the defendant is the opinion of the experts reports that are before the Court. Those experts expressed the opinion, recited above, to the effect that the defendant continues to pose a continuing risk and poses that risk, in part, as a consequence of his inability to deal openly and candidly with his sexual issues. The Court has already commented on the nature of the report provided by the carers and the suggestion that the conversation with "Rick" disclosed an openness and candour that would impact upon the opinion expressed by the experts. 7. None of the experts, faced with that note, altered their opinion. Moreover, as earlier expressed, the Court does not view the note and the dismissive nature of the comment from the defendant to his carer, in the course of a conversation lasting minutes, as evidencing openness and candour about the issues that form the fundamental problem in the risk assessment of the defendant. 8. As earlier stated, the objects of Part 5 of the Act include the protection of the safety of members of the public and also deal with the provision of care, treatment and control of persons subject to criminal proceedings; the facilitation of hospital care or care in the community through community treatment orders of persons who require involuntary treatment; the provision of an opportunity to have access to appropriate care for persons suffering mental health impairment or cognitive impairment; and the protection of the safety of victims of forensic patients and acknowledgement of the harm done to them. 9. Some of those objects may be achieved by the use of voluntary treatment, but the regime proposed as the less restrictive management of the risk by the defendant is not a regime that is directed to the protection of the safety of members of the public. Rather, it is a regime the object of which is the treatment and care of the defendant. Of course, if the defendant were to be subject to voluntary therapeutic treatment, which eliminates the risk or reduces it so that it is no longer unaccepted, then that would be a less restrictive means of managing the risk by treating the defendant. 10. The determination by the Court that the defendant poses an unacceptable risk involves, primarily, the determination of the risk to the safety of the members of the public. The regime proposed "managing by less restrictive means" raises interesting questions as to the appropriate and proper interpretation of the Act. 11. That which is required by the provisions of s 122(1)(b) of the Act is that "the risk" cannot be adequately managed by other less restrictive means. The risk to which s 122(1)(b) of the Act refers is the "unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient". 12. Thus, the determination of whether the Attorney General has satisfied the Court that the risk cannot be adequately managed arises only once it has been determined that the forensic patient poses an unacceptable risk of the kind to which reference has already been made. It is noteworthy that it is not the patient that must be shown that she or he cannot be adequately managed by other less restrictive means, but the risk, being the risk that is unacceptable of causing serious harm to others, but the comment in the last sentence of [130] above apply. 13. The difficulty with the defendant's submission is that to which the experts referred in cross-examination. First, the experts recount that the defendant was reluctant to participate in the examination conducted by them. That lack of participation was explained, particularly by Dr Ellis, during the course of cross-examination, as a significant factor in determining that the defendant has "disengaged" and is reluctant to participate in counselling, save for the mandatory requirements imposed upon him. It is consistent with other evidence of disengagement. 14. The second aspect is the issue to which the Court has earlier referred, namely, the lack of openness and candour or as to his sexual needs and thoughts. I have, already in these reasons, commented on the note relating to the conversation with Rick Goth. That is the only evidence of any discussion in which the defendant has willingly participated relating to "sexual needs". That conversation discloses a dismissiveness and also discloses a lack of engagement. 15. The third aspect is the opinion expressed by the experts that the defendant would not voluntarily undertake a program of the kind now implemented compulsorily. Those opinions are based upon clinical analysis and examination. 16. While the defendant relies upon his isolation, the experts view the isolation differently. The isolation is part of the disengagement to which they have referred. 17. In the words of Dr Ellis: "Ultimately risk is managed by the type of clinical care provided, rather than specific legal orders. His current care is a mix of general NGO disability services, government disability services, general health services and a private forensic psychiatrist and psychologist. Legal orders may serve to facilitate this clinical care. At this point it is not considered likely he would voluntarily accept the recommended risk management strategies that are currently in place." [24] 1. Dr Ellis proceeds to make clear that the recall power, available only if the defendant continues as a forensic patient, may have an effect by acting as leverage "to attend upon the more active forms of risk management." 2. After referring to previous reports and the general cooperation previously displayed by the defendant, Dr Ellis referred to an earlier opinion in which he considered day-to-day compliance was likely to continue under guardianship alone. He then proceeds to make the following comment: "There have been at least 3 behaviours of concern in the last 12 months where services have continued and require the coordination of a forensic order to respond. He now has new treatment providers and needs time to establish an effective relationship with them and for them to form responsive management strategies. With this information I have revised my view and consider that a continuation of a forensic order is warranted." [25] 1. On the foregoing, Dr Ellis was cross-examined. The exchange is informative. 2. It starts with a reference to the opinion expressed by Dr Ellis at p 135 of Exhibit JP1, in which Dr Ellis expresses the view that the defendant is "yet to sustainably moderate the risk without a legal framework to support it." He was also referred to the view that his participation had been "motivated by legal conditions. It is not likely that he would continue to attend diligently on a voluntary basis." [26] 3. The following questions and answers are then provided: "Q: What is the factual basis on which you relied to have that opinion? A: Well, I think that the first would be that his lack of participation, that he tends to - I mean, he expressed that he didn't like being on the order and he didn't like having to be assessed for this purpose. And I think, you know, he is on an order that required him to live in a particular place, and he left that place, and he disengages from treatment staff, you know, during a mandated order. So I think there's, you know, significant evidence to suggest that without some form of compulsion he is likely to disengage. Q: But absent an extension order, he may still have the support services of NDIS. Did you see any indication from him that would suggest he [read: you] maintain the same opinion in relation to participation with those support services? A: Again, I don't think he had a strong and genuine therapeutic alliance with his support workers. I think that he tolerated them and they had to interact with him in a manner that placated him on the video. And I think - and, again, I think he has disengaged from previous NDIS support workers. So I think there's, you know - I think there is a reasonable possibility he would disengage from those supports. It may be that he doesn't and it may be that he continues to accept them. But I think overall his pattern of disengagement from services indicates that he is not likely to. Q: What is your opinion on those services to their ability to manage his risk? A: I think their ability to manage his risks without further supports, I think that they provide part of his risk management, but they are limited because they have a particular mandate and a particular method in which today - to interact with people and, in my view, I think at present the oversight of the tribunal and the Community Safety Service assist those services in how they are managing him." [27] 1. Later, in answer to further questions relating to engaging with support workers, Dr Ellis said: "I think that these support workers will [read: were] sought out because he had disengaged from the previous group and it wasn't HRM's action that found those support workers. I think the order was a part, a catalyst for getting the new support workers in place when it was discovered that he disengaged. I think that there is, from my understanding, having the order in the case management and the oversight from the community safety program and the Tribunal was part of ensuring that he was receiving appropriate support from NDIS." [28] 1. The following question and answer is highly relevant: "Q: Mr Ellis, would you agree that given HRM's long time in the community without offending the lack of any evidence of paraphilia, the more stable support is getting now, his abstinence from alcohol and drugs, that his risk of seriously harming another person is now low? A: I think that I would agree that his tenure in the community without offending is an important factor and his abstinence from substances are (sic) important factors. They have served to reduce his risk from previous. I think that the services he is receiving now are better and he's more engaged with them. I do have a concern that that is new and that has not been sustained because of his pattern in the past disengaging that before I would say that that would be sustainably into the future contribute to his risk for reduction I'm not yet prepared to say that. That is then counterweighted though by his historical offending and his intellectual disability. And again his attitudes may have moderated over the past months, but his attitudes over the course of his time in the community have been - and also the stability of his mental state has fluctuated considerably over the course of his time in the community. But I would say that his risk has reduced over time but not to a level where I would say it would [be] low without the oversight of the Tribunal. I think it is low with the oversight of the tribunal and the community safety program. I think that the available supports and supervision and monitoring does effectively - and that has been established because he hasn't reoffended, albeit with periods of more fragmented supervision. In the absence of the tribunal and the community safety program I think that his risk of causing serious harm would remain in the moderate range and that's largely because of the historical factors in the case and because his stability currently is dependent on that intervention that's occurring now." [29] 1. The submission of the defendant relies, as earlier stated, on the length of time that the defendant has spent in the community. But it ignores the opinions relating to thought disorder and the defendant's misreading or ignoring of cues to react inappropriately to what the defendant considers romantic advances or an openness to a romantic advance. 2. The same opinion was expressed by Mr Sheehan and by Prof Hayes and Mr Wu. 3. In the evidence of Mr Sheehan, in comparing the NDIS and other non-compulsory regimes, he made clear that such regimes are established for the purpose of assisting people with psychiatric needs but are not a "risk amelioration network". Mr Sheehan referred to the tension between the unfolding of the NDIS system and the forensic provisions. In cross-examination, he referred to it as something like putting "a square peg into a round hole". He referred to the overlap in services but the fundamental difference in the purpose and approach. Mr Sheehan said: "So in some ways it is a bit putting a square peg in or a round hole, in terms of, there is some overlap with guardianship and there is definitely, well there is helpful and necessary roles, there are provisos in NDIS funding but don't necessarily speak to risk of their person, they are designed to assist people with disabilities but they are not a risk managing body, and, so they are not kind of asking him to do things that go beyond their purpose, and I mean I see that emerging also in the last five years, with HRM's case, for instance, when I think one of the support, I think it was in New Horizons I believe from memory, he said well he no longer needs, he is independent, no longer need support, I said in my report I don't think that was an accurate appraisal of his needs. That is, that is why, I see, the oversight of the [Tribunal] as a way to, to enforce those other services, and they are not enforced very strongly, I think, he is obliged to comply with a comprehensive system of support around him and he doesn't, he has only passingly the engaged with that, naturally they won't breach him for that and bring him into psychiatric care, cause problems to the centre, might be seen as heavy-handed but I think they do, to have someone there that can intervene, if things escalated in real time, I think that is what is necessary I think." [30] 1. The evidence before the Court is that HRM has been non-compliant with orders. He fails to attend meetings that are required. 2. More importantly he misunderstands cues in ordinary life and misunderstands or ignores social boundaries which he lacks. In the estimate of Professor Susan Hayes, HRM requires 12 to 18 months of intensive interaction treatment before the risks that currently exist would be lowered. Asked about the nature of the final behaviour management plan and other factors, Professor Hayes said: "Look, those factors are certainly helpful in reducing the risk, but these are early days. I saw him in March. The other expert saw him more recently than that. He hasn't been getting the regular input, partly owing to lock down, and partly owing to the location, and partly owing to the difficulties of locating workers in rural areas. I saw him seven months ago. The others experts saw him more recently. I don't think we have seen this plan in action in an effective manner during those last seven months. So I would still say that my estimate of the risk is moderate. I would like to see what happens when there has been at least, at least a year to 18 months of quite intensive intervention." [31] 1. As Mr Wu explained, the current restrictions implemented under the Extension Order are not particularly onerous and the Tribunal is not acting particularly coercively. The Behaviour Goals to which the defendant refers are of recent origin. 2. The test, however, is not the coerciveness or restrictiveness of the regime as it has been operating currently. The test is the capacity of the scheme to be restrictive. 3. There is no doubt that the combination of services suggested by the defendant is a less restrictive regime. However, on the basis of the expert reports and the oral evidence of the experts, the Court is satisfied of a number of factors: first, the risk of sexual offending is real and the effect of the manifestation of that risk is significant. The risk is informed by the inability of the defendant to read ordinary cues from people for whom the defendant feels some sexual attraction. The continuing nature of inappropriate conduct and statements attests to that being a continuing problem. 4. In that regard, and probably more importantly, there is the continuing disengagement of the defendant and his dismissive reaction to enquiries about his sexual needs and the thoughts that precipitate them. The risk of sexual offending evaluated with the harm that would be done, if the sexual offending were to occur leads the Court to rule the conclusion that the risk is an unacceptable one and will remain so while the defendant continues his lack of engagement and his lack of real capacity to discuss the issues associated with his sexual desires and needs. 5. Further, I accept Professor Hayes' opinion that the current regime, which is not coercive, would have to be in place for a further 18 months before one could assess whether the defendant had improved sufficiently to allow for a less restrictive regime to manage the risk. 6. I also accept the opinion, expressed by each of the experts, as to the likelihood that the defendant would not participate voluntarily in the current regime and needs the coercive and/or compulsory nature of an Extension Order or status as a forensic patient in order to ensure a continuation of the treatment. 7. Unlike the defendant, I do not consider that the defendant's failure to abide by some of the orders is a signal of independence or capacity to operate without the availability of compulsion by the Tribunal. 8. For all of the foregoing reasons, the Court was satisfied that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and that the risk cannot be adequately managed by other less restrictive means. 9. As a consequence, orders were made being an Extension Order extending HRM's status as a forensic patient for a further two years. At the end of that two years, there will have been sufficient time on the current program for the Attorney General and/or the Court to determine whether further orders of that kind are necessary and whether the voluntary regime could adequately manage the risk posed by the defendant. 10. I concluded that an order with a duration of two (2) years was appropriate because I accept and agree that a further 18 months on this regime is necessary before it can be assessed. Thereafter a determination by the Attorney General, and, if necessary, the Court can be achieved. 11. For those reasons, orders were made on 11 November 2021 extending the status of HRM as a forensic patient for a period of two years up to and including 11 November 2023. These are the reasons reserved at the time that order issued. ********** Endnotes 1. R v HRM [2009] NSWDC 245 at [21]-[25]. 2. Ex JP1, pp 122-139. 3. Report of Dr Andrew Ellis, 10 October 2021, pp 5-6; Ex JP1, pp 127-128. 4. Report of Dr Andrew Ellis, 10 October 2021, pp 10-11; Ex JP1, pp 132-133. 5. Report of Dr Andrew Ellis, 10 October 2021, p 11; Ex JP1, p 133. 6. Report of Dr Andrew Ellis, 10 October 2021, p 12; Ex JP1, p 134. 7. Report of Dr Andrew Ellis, 10 October 2021, pp 13-14; Ex JP1, pp 135-136. 8. Report of Dr Andrew Ellis, 10 October 2021, p 15; Ex JP1, p 137. 9. Ex JP1, pp 141-181. 10. Report of Mr Patrick Sheehan, 4 October 2021, pp 13-14; Ex JP1, pp 153-154. 11. Report of Mr Patrick Sheehan, 4 October 2021, p 24; Ex JP1, p 164. 12. Report of Mr Patrick Sheehan, 4 October 2021, pp 29-30; Ex JP1, pp 169-170. 13. Report of Mr Patrick Sheehan, 4 October 2021, p 31; Ex JP1, p 171. 14. Report of Mr Patrick Sheehan, 4 October 2021, pp 33-34; Ex JP1, pp 173-174. 15. Decision of the Mental Health Review Tribunal in relation to HRM, Authorised by the Deputy President of the Tribunal on 19 August 2021; Ex JP1, p 229. 16. NSW Department of Communities and Justice Community Safety Program Report to the Mental Health Review Tribunal in relation to HRM, Authorised by the Case Manager and Assessor of the Community Safety Program on 29 July 2021, Ex JP1, pp 289-290. 17. Email from Ms Gorman to Ms Roy, 15 September 2021; Ex JP1, p 274. 18. Behaviour Support Plan in relation to HRM prepared by Ms Celeste Car (Provisional Psychologist/Behaviour Support Practitioner) on 15 June 2021; Ex JP1, p 426. 19. Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 69. 20. Ibid, s 70. 21. Ibid, s 69. 22. Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [26]; Attorney General of New South Wales v HRM [2016] NSWSC 158. 23. The Act, supra, s 127(1). 24. Exhibit JP1, p 137. 25. Exhibit JP1, p 138. 26. Tcpt, 29 October 2021, p 15. 27. Tcpt, 29 October 2021, p 15-16. 28. Tcpt, 29 October 2021, p 25. 29. Tcpt, 29 October 2021, p 30-31. 30. Tcpt, 29 October 2021, p 43. 31. Tcpt, 29 October 2021, p 61. Amendments 29 November 2021 - Legislation Cited amended 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: 29 November 2021