Supreme Court New South Wales Medium Neutral Citation: Attorney General for NSW v DB [2022] NSWSC 1546 Hearing dates: 11 November 2022 Date of orders: 11 November 2022 Decision date: 11 November 2022 Jurisdiction: Common Law Before: Walton J Decision: In all the circumstances, the Court makes the following orders: (1) Order pursuant to s 126(5) of the Act: (a) appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to this Court on the results of those examinations by a date to be fixed by the Court, and (b) directing the defendant to attend those examinations, (2) Order pursuant to ss 130 and 131 of the Act, that the defendant shall be subject to an interim order for the extension of his status as a forensic patient commencing from midnight 28 December 2022 for a period of three months; (3) Liberty is granted to the parties to approach the High Risk Offenders List Judge to obtain hearing dates for any application for an extension of the interim order or the final hearing of the matter, and to fix a timetable for the filing and service of evidence and submissions. Catchwords: CIVIL - Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – preliminary hearing - general principles – forensic patient – statutory conditions for making of interim orders satisfied – orders made Legislation Cited: Crimes Act 1900 (NSW), ss 33(1)(a), 66C Crimes (High Risk Offenders) Act 2006 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive impairment Forensic Provisions Act 1990 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 72, 121, 126(4), 126(5), 130, 131 Cases Cited: Attorney General for New South Wales v Mulipola (Preliminary) [2021] NSWSC 790 Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041 Attorney General v Gallagher [2006] NSWSC 340 Category: Principal judgment Parties: Attorney General for New South Wales (Plaintiff) DB (Defendant) Representation: Counsel: K Curry (Plaintiff) B Fogarty (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/228148 Judgment 1. By summons filed on 2 August 2022, the Attorney General for NSW ("the plaintiff") sought an extension order under Pt 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act") in relation to DB ("the defendant"), extending his status as a forensic patient for a period of five years. 2. The defendant is a 55-year-old Indigenous man, who is diagnosed with chronic and treatment resistant schizophrenia, alcohol and substance use disorder (in remission) and likely borderline intellectual disability. He also has type-2 diabetes, Vitamin B12 deficiency, Hepatitis C, and a history of asthma, and has suffered right sided pleural effusions since September 2020, requiring ongoing investigations. 3. The defendant has had over 30 involuntary admissions to mental health facilities, the first being in Newcastle in May 1987 (aged 20). His last admission was to Manning Base hospital on 10 July 2017, which lasted only three days. He failed to return from leave, but thereafter attended his GP for medication. He remained compliant with his medication until around March 2018. 4. The defendant has also been managed in the community, by way of Community Treatment Orders (CTOs), with a range of different antipsychotic medications (oral and depot) and support (most recently in 2017) from the Taree Community Mental Health Team and Dr Michael Richardson (treating psychiatrist). 5. Presently, the defendant is a forensic patient housed in the Clovelly Ward of the Forensic Hospital in Malabar. Prior to this, he was managed in the mental health pod (Hamden) and at MSPC (Area 2) and on 24 January 2022 he was transferred to the Bronte Ward of the Forensic Hospital. 6. The defendant is the second oldest of six children. He was born in Campbelltown Hospital, and grew up in Emerton (Sydney), before his family moved to Taree in his teens. He has a history of learning difficulties and is functionally illiterate. He has reported having "a stable and affectionate childhood". While he was close to his sister and her family, since entering into custody on 29 June 2018, his contact with his family has dwindled to the point he currently has no contact with any of them. He reported that he loved his extended family but is not close with them. 7. The defendant has had three previous relationships with women, but none for the last 13 years. He has one daughter who is a teenager. He has not seen his child for many years, nor his former partners. 8. The defendant has only ever worked casually, for short stints, as an adolescent and young man in forestry and timber-milling. He has been in receipt of the Disability Support Pension since 1987, when he was 20 years old, and has not worked since then. 9. The defendant is currently serving limiting terms for aggravated sexual intercourse without consent with a child less than 14, indecent assault of child less than 16, and wound with intent to cause grievous bodily harm ("the index offences"). These offences were committed in 2018 against his niece and younger brother respectively. The last of the limiting terms expires on 28 December 2022. 10. On 30 June 2018, the defendant was charged with the index offences after having made admissions to police in an interview the day prior. On 2 April 2020, his Honour Judge Jeffreys found the defendant unfit to be tried and referred the matter to the Mental Health Review Tribunal ("the Tribunal"). On 3 August 2020, the Tribunal determined that the defendant was unfit to be tried and would not become fit within 12 months. 11. On 24 March 2021, he was found in a special hearing before her Honour Judge Tupman to have committed all but one of the index offences. On 16 April 2021, her Honour fixed an overall effective limiting term of four years and six months. 12. On 3 June 2021 the Tribunal determined the defendant remained unfit to stand trial and ordered his transfer to the Forensic Hospital by 1 February 2022. The Application 1. Pursuant to s126(4) of the Act, a preliminary hearing is required. 2. The plaintiff sought the relief in paragraph one of the Summons, for an order pursuant to s 126(5)(a) of the Act appointing two qualified psychiatrists or registered psychologists (or one of each) to conduct separate examinations of the defendant and to furnish their reports to the Court. The plaintiff also sought an order directing the defendant to attend those examinations. 3. As the matter is unlikely to be listed for final hearing until after the expiry of the defendant's status as a forensic patient, the plaintiff also sought the relief in paragraph 2 of the Summons that the defendant be subject to an interim extension order pursuant to s 130 of the Act for a period of three months. 4. In considering whether to make the interim extension order, the Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. In dealing with interim orders, it is appropriate to give weight to risk-avoidance. The Position of the Defendant 1. On 23 August 2022, Dr Katherine Johnson was appointed as tutor for the defendant in this proceeding. For the purposes of the preliminary hearing, the defendant, through his tutor, adopted the following positions: 1. He neither opposed, nor consented to, the plaintiff's application for an interim extension order or to be examined by two relevantly qualified practitioners, set out as proposed orders 1 and 2 of the relief claimed in the Summons; 2. He did not oppose proposed order 4 of the relief claimed in the Summons; and 3. He reserved his position to respond to order 3 at the final hearing. 1. It may be further observed, that, as a result of a recent report prepared by Dr Christina Matthews for the Tribunal of 21 October 2022, the position of the defendant for the purposes of the preliminary hearing evolved to one in which there was no active opposition to the orders sought by the plaintiff and submissions were directed to contextualising particular aspects of the plaintiff's submissions. In particular, submissions which had been relied upon by the defendant as to the absence of recent psychiatric assessment of the defendant and the continuation of delusions and more significant improvements in insight substantially dissolved. So too did submissions as to the insight of the defendant as to his offending and mental illness. The Act and threshold requirements 1. It was common ground that the jurisdictional requirements for the making of the interim and interlocutory order was established in the present case. In that respect, the submissions for the plaintiff were uncontentious and formed the foundation for what follows. 2. The Act came into force on 27 March 2021 and repealed the former Mental Health and Cognitive impairment Forensic Provisions Act 1990 ("MHFPA"). The new Act does not substantially alter the process or the test to be applied in applications for an extension order and the case law relating to applications under the MHFPA remains applicable. 3. Section 121 of the Act empowers the Supreme Court to extend a person's status as a forensic patient. 4. An extension order may be made if the Court is satisfied of the test in s 122 which provides: 1. A forensic patient can be made the subject of an extension order as provided for by this Part and only if the Supreme Court is satisfied to a high degree of probability that: 1. the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and 2. the risk cannot be adequately managed by other less restrictive means. 1. 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. 1. Section 122(1) provides that a forensic patient can only be made the subject of an order "if and only if" the Court is satisfied of a number of matters. In relation to this phrase, McClellan CJ at CL stated in Attorney General v Gallagher [2006] NSWSC 340 at [34]: The caution that an order can only be made "if and only if" the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty. 1. The plaintiff bears the onus in respect of both limbs in s 122 and in respect of the second, must prove the negative. 2. The test in s 122(1) requires satisfaction to a "high degree of probability". The Court must be satisfied that the existence of the unacceptable risk is higher than the civil standard of proof and is "beyond more probably than not". 3. Applications for extension orders may only be made in relation to forensic patients: (s 123). A forensic patient is defined in s 72 of the Act. The defendant is a forensic patient pursuant to s72(1)(b) of the MHCIFP Act as he is a person for whom a limiting term has been nominated after a special hearing and who is detained in a mental health facility. 4. An application for an extension order may be made in respect of a forensic patient subject to a limiting term and may not be made more than six months before the expiry of the limiting term: s 124. Accordingly, the plaintiff may commence an application for an extension order prior to the expiry of the defendant's current limiting term on 28 December 2022. 5. The structure and language of the regime has direct parallels with the Crimes (High Risk Offenders) Act 2006 ("HRO Act") and as such assistance is gained from authorities dealing with that legislation. Unlike the HRO Act, however, this regime does not empower this Court to make specific orders about the care, treatment, or control of a forensic patient. Such matters remain within the province of the Tribunal, which has the expertise in determining the best options for care, supervision, treatment and if necessary, detention of forensic patients. Relevant Principles 1. There was no dispute as to the relevant principles concerning a preliminary hearing or the test to be applied in considering the application. In my view, the statement of principles relied upon by the plaintiff at paragraphs [23] – [42] of the plaintiff's written submissions are essentially correct. Furthermore, the parties accepted the statement of principles as stated by the Court as presently constituted in Attorney General for New South Wales v Mulipola (Preliminary) [2021] NSWSC 790 at [18] – [32] and Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041 at [19] – [32] which I adopt for the purposes of this judgment. 2. I do note, however, that there are two limbs to the Court's consideration in the context of a preliminary hearing: 1. The Court has to be satisfied that "the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient". 2. If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others, then it must make an extension order if also satisfied to the same high degree of probability that "the risk cannot be adequately managed by other less restrictive means". Section 127 Considerations 1. Having regard to the positions of the parties, the consideration of s 127 considerations may be dealt with reasonable economy. 2. The plaintiff relied upon a number of considerations bearing upon the safety of the community, namely, the defendant's criminal history, the circumstances of the index offences and mental illness before turning to the psychiatric reports satisfying the requirements of s 125 of the Act. The report relied upon in that respect was the report of Dr Richard Furst, forensic psychiatrist, of 29 May 2022, following an assessment of 27 May 2022 ("the Dr Furst Report"). Safety of the Community Criminal History 1. There was a dispute between the parties as to whether the defendant's criminal history might be described as "extensive", as submitted by the plaintiff with reliance upon the convictions of the defendant for violence and sexual offences, and the defendant's submission that his criminal history was "not a significant" one with reliance placed upon the remarks on sentence for the index offence of Tupman DCJ. It is unnecessary to resolve that issue at this preliminary hearing. It is suffice to say that the defendant's criminal record is a relevant consideration bearing upon the safety of the community for the purposes of the s 127(2)(a). 2. There was no significant dispute as to the summary of the criminal history and index offences provided by the plaintiff except in one respect regarding the index offences which I will mention during the course of the following summary. 3. The defendant's first arrest and court appearance was in 1989 when he was fined and given a bond on charges of assault, assault occasioning actual bodily harm and violent disorder. His first term of imprisonment was in 1992 when he was given a six-month sentence for the malicious wounding of his brother. 4. The defendant received a further six-month sentence in 1993 for assault occasioning actual bodily harm and the revocation of an earlier Community Service Order ("CSO") for an assault charge. The common assault took place shortly after he was released from custody. The assault occasioning actual bodily harm offence occurred when he was subject to the CSO. This involved offending against his ex-de-facto partner whilst in the presence of his two young children. The defendant was armed with a knife and attacked the victim resulting in two slight lacerations to her back, one to the ribs and a laceration to two fingers. The defendant also smashed the front passenger window of the victim's car whilst she was present in it. 5. The defendant has two previous sexual offences including an indecent assault in 1990 and wilful and obscene exposure in 1995. 6. Between 1995 and 1999 the defendant committed various offences which were dealt with by way of fines including goods in custody and stealing offences. He was also fined for an offence of resist officer in execution of duty. 7. In December 2000, the defendant had a common assault charge dealt with under s 33 of the MHFPA. On this occasion he waved a knife in the direction of his family and repeatedly made threats to kill them by cutting their throats and blowing up their homes. 8. There was also an offence of damaging property by fire which was dealt with by way of a s 9 bond in 2004. This involved the defendant deliberately setting fire to his brother's home at a time when he was aware that his brother and his fiancé were sleeping in the house. Index Offences 1. On 22 March 2021, the defendant was charged by way of two indictments with the following offences: 1. Wound person with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900; 2. Indecent assault of person under 16 years of age (two counts) contrary to s 61M(2) of the Crimes Act 1900; and 3. Aggravated sexual intercourse with person between 10 and 14 years of age contrary to s 66C(2) of the Crimes Act 1900. 1. The victim of the wounding offence was the defendant's brother. Sometime prior to the offending, the defendant's sister accused the victim's teenage son of inappropriately touching her young daughter, EB. 2. On 23 June 2018, the defendant and his sister visited the victim's home when he was not there, and the defendant threatened the victim's son and told him that he was going to stab the victim. 3. The plaintiff submitted: On 29 June 2018, the victim left two hostile voice messages on the mobile telephone of his sister's son. His sister telephoned the defendant and played him the messages. At approximately 8:30pm that night, the defendant knocked on the front door of the victim's house. Following a short verbal confrontation about the messages, the defendant became angry, pulled a steak knife from the right pocket of his jumper, and stabbed the victim in the upper abdomen. The defendant then raised his hand while holding the knife and cut the victim's neck. The victim moved backwards and closed the front screen door. At this time, the defendant lunged forward with the knife, stabbing into the screen door. The victim managed to close the front wooden door. The defendant continued yelling and the victim recalls words to the effect of, "When I get out of goal I'm coming back and when I come back I am going to kill you and the rest of your family". The victim's son telephoned the police. 1. There is considerable force in the submissions made by the defendant with respect to the last-mentioned contention by the plaintiff. 2. The defendant contended that the voice messages left by his brother on his sister's mobile phone, which were played to him by his sister, were not just 'hostile', but hostile and abusive in the extreme (including threats of violence, expletives, and terms of vilification), and, as noted by Tupman DCJ in her Remarks on Sentence, constituted a 'degree of provocation'. (See the actual and full contents of the mobile phone text messages set out in the Crown Case Statement (2018/201605)). 3. I then continue with the account of index offences. 4. After the victim closed the door, the defendant threw the knife on the ground and walked to Taree Police Station where he told police, "I just stabbed my brother. I ran all the way here". He told police that he intentionally stabbed his brother in the neck and if his brother had not closed the wooden door, he would have stabbed him again. 5. The victim suffered a "small" and "5cm superficial linear laceration" to the left side of his neck and a "small superficial wound" on his abdomen. The injuries were described by the treating doctor as "moderate". 6. On 29 June 2018, the defendant was placed under arrest in relation to the stabbing of his brother. Whilst in police custody he was interviewed by police in relation to the stabbing. During the interview he stated that he wished to clear his conscience and started to make admissions in relation to the sexual abuse of his niece EB. The defendant admitted that he started flirting with EB, who was six or seven years old at the time when he was living in a granny flat at his sister's house. He stated that it started getting out of control and that he started to touch her where he should not and that he had no control over himself. He stated that he "touched her on the vagina every day" and "did not penetrate her vagina until later". 7. On 24 June 2018, at approximately 2:00pm, the defendant collected the victim and took her back to his place. When they were on the lounge, the defendant started to kiss and cuddle with the victim and touched her all over. He kissed her on the stomach and put his fingers down her pants and touched her vagina. He then picked her up and carried her to the bedroom. He put his hands down her pants again as he wanted to see what damage had been done to her and initially was rubbing the victim's vagina (count 1 – aggravated indecent assault child under 16). 8. The defendant thought the victim's vagina felt more open than a 10-year olds should and he said he was investigating and put his finger inside without difficulty. He described himself as having "no mercy" and indicated he was trying to see "what damage was done" (Count 2 – aggravated sexual intercourse with a child over 10 years and 14). 9. The defendant also admitted that on multiple occasions, he masturbated in front of the victim while he was naked. He also admitted to other occasions where he "touched her everywhere including her vagina". The victim told police that this occurred on multiple occasions, with the latest being "a couple of days" prior to her interview. She indicated that the defendant touched her vagina on the outside of her clothing when they were in his room (Count 3 – aggravated indecent assault child under 16). 10. On 24 March 2021, following a special hearing, Tupman DCJ found that on the limited evidence available, the defendant had committed counts two and three on the indictment relating to the sexual offending. In relation to count one, her Honour found the defendant not guilty on the basis that the Crown failed to prove that the event occurred at the specific location and in the time period alleged. 11. On 25 March 2021, Tupman DCJ found that on the limited evidence available, the defendant had committed the wounding offence. 12. On 16 April 2021, Tupman DCJ imposed the following limiting terms and referred the matter to the Tribunal: 1. 3 years and 4 months commencing on 29 June 2018 and expiring on 28 October 2021 for the aggravated sexual assault offence (Count 2 in proceedings 2018/201908); 2. 20 months commencing 29 June 2018 and expiring on 28 February 2020 for the indecent assault offence (Count 3 in proceedings 2018/201908); and 3. 2 years and 3 months commencing on 29 September 2020 and expiring on 28 December 2022 for the wounding offence (proceedings 2018/201605). 1. The overall effective limiting term imposed by Tupman DCJ was 4 years and 6 months. Her Honour found the sexual offences were below the midrange in terms of objective seriousness and the wounding offence was towards the bottom of the range. Mental Illness 1. As I have mentioned, some issues arose regarding the recency of psychiatric reports, although, those issues essentially passed because of the further report of Dr Matthews. 2. Noting those matters, there was no dispute for the purposes of the preliminary hearing as to the plaintiff's submissions as to the mental illness of the defendant. 3. The defendant has suffered from mental health problems since he was a teenager, with initial symptoms including auditory hallucinations, paranoid delusions, and mood disturbance. He was admitted to the James Fletcher hospital in Newcastle when he was 20 years old following a belief he was being poisoned by workmates. He has had over 30 hospital admissions since that time due to exacerbations of his chronic schizophrenic illness. 4. The defendant has been treated with several different antipsychotic medications including both oral and longer-acting injectable forms of medication as well as mood stabilising medications. The bulk of his treatment over recent years in the community was through the Taree Community Mental Health Team where he was case managed and subject to Community Treatment Orders ("CTO"). He was not receiving active case management for an extended period prior to his offending in 2018. 5. The defendant's most recent psychiatric admission before his arrest was on 10 July 2017. On this occasion he presented with police after he offered his entire pension payment to a stranger if they would cut out his eyes. He had been smoking cannabis and had discontinued his antipsychotic medication prior to his admission. He also felt suicidal and was thinking of poking out his eyes. He was granted leave from the psychiatric unit on 13 July 2017 and did not return. He later attended upon his GP for further assessment and medication which he took until around March 2018. 6. The defendant has attempted suicide on approximately 12 occasions, including taking overdoses of medication in response to psychotic symptoms. 7. Shortly after his incarceration in 2018, the defendant was reviewed by Dr Gordon Elliott. He was assessed as being floridly psychotic, referring to voices and delusional beliefs and was severely thought disordered. While he initially refused medication upon his arrival into custody, he agreed to take olanzapine and paliperidone depot which were prescribed. He was referred to the Mental Health Screening Unit at the MRRC. 8. The defendant was admitted to the Forensic Hospital on 24 January 2022. He was reviewed by Dr Farrar on admission and noted to be mildly thought disordered whilst communicating paranoid delusions involving demons. He reported auditory hallucinations of being able to hear engines, and olfactory hallucinations involving being able to smell diesel fuel. Substance Abuse 1. The defendant has an extensive substance misuse history, smoking cannabis from 16 years and also, from time to time, using LSD, amphetamines, benzodiazepines, heroin, cocaine, and 'ice' as an adult. He reported to Dr Alchin and Dr Farrar that 'in the months leading up to his [index] offences, he self-ceased his antipsychotic medication and "got right into the drugs"'. He also reported drinking alcohol since his mid-teens and 'heavy use' of alcohol until the age of thirty. 2. While he has been on a methadone program in the past, he has never had the benefit of admission to a drug and alcohol rehabilitation facility. 3. His substance misuse disorder is currently in remission. There is nothing in any of the medical reports or Corrective Services' 'Conviction, Sentences and Appeals' record in Exhibit DY-1 to suggest that he has been anything other than abstinent from illicit drugs since his incarceration commenced on 29 June 2018. 4. In his assessment with Dr Furst, the defendant told him that: 1. 'he "wants to live a normal life"' 2. 'he does not want to use drugs when he is released from custody/discharged from hospital' 3. '"In the last four years, I've learnt that drugs and alcohol are a no no"'. 1. However, it is also important to note the observations in the Dr Furst Report as follows: [DB] was able to appreciate that there was a connection between his drug use and psychotic relapses throughout his life; however, that did not stop him from using drugs throughout his life, including in the period preceding his arrest in 2018 when he was using 'ice' on a regular basis, was smoking cannabis fairly heavily, was drinking excessively and was also taking sedative benzodiazepine pills. Report received under s 125(b) 1. The defendant initially contended that less reliance should be placed upon the Dr Furst Report because the opinion was essentially five months old and was expressed at a time when the defendant was in the Bronte unit of the forensic hospital (and Dr Furst had expressed the view that he should remain in that unit). 2. As mentioned, Dr Matthew's assessment was made much more recently and after the defendant had transitioned to the Clovelly sub-acute unit. Those assessments are consistent with Dr Furst's psychiatric opinion. Furthermore, there are significant aspects of Dr Furst's report regarding the diagnosis and risk assessment of the defendant which remain important considerations for the present application. 3. Dr Furst noted that, while there were no indications of agitation or acute psychotic symptoms during the interview, the defendant had residual delusional ideation and only limited insight into the nature of his chronic illness and treatment needs. 4. In terms of diagnosis, Dr Furst formed the view the defendant met criteria for the following mental disorders: 1. Schizophrenia – chronic and treatment resistant; 2. Alcohol and Substance use disorder (alcohol, cannabis, methylamphetamines); and 3. Likely borderline intellectual disability. 1. Dr Furst noted the defendant suffered from a mental illness in the form of chronic treatment resistant schizophrenia and he was also a mentally ill person within the meaning of the Mental Health Act 2007 ("MHA") by virtue of persistent delusions and the risk to himself and others without treatment in a hospital owing to his 'conditioning condition'. 2. Dr Furst expressed the view the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient. He noted that the defendant had a moderate to high loading of historical risk factors for future violence in the long term. He observed the defendant had a history of violence as an adult, including both the index offending and other offending as well as the infliction of serious violence on two of his younger brothers in 1992 and 2018. 3. In terms of dynamic risk factors for future violence in the short-term Dr Furst noted the defendant remained mentally unwell, with ongoing hallucinations, delusions and thought disorder. He found he had a moderate to high loading of dynamic risk factors with delusions being a key risk factor in relation to his potential to act. He lacked insight as he believed he is currently well. 4. In his opinion, the defendant's primary risk factors in relation to his future risk of violence related to his treatment resistant schizophrenia and substance use disorder, coupled with his previous history of serious violence offending. He noted the defendant's low level of intellectual functioning as an additional risk factor in relation to impulsivity and impaired capacity for consequential thinking. 5. Dr Furst noted that the defendant has an absence of stable accommodation, and a lack of community supports, combined with an unacceptable risk of relapse of his mental illness and addiction, meaning that he had a high loading of risk management factors for future violence. 6. Overall Dr Furst opined: Combining [DB's] historical, clinical and risk management items places him in a group of individuals considered to be a moderate to high risk of future violence/future violent offending and indicates, in combination with all of the other identified historical and clinical factors, that [DB's] overall risk of causing serious harm to others cannot be adequately managed unless he remains a forensic patient. 1. Dr Furst also conducted a risk assessment in relation to the defendant's risk of sexual reoffending. The defendant was considered to be an above average risk on the Static-99R. In response to this Dr Furst stated the following in terms of risk: Based on [DB's] clinical profile and score on the Static-99R, i.e. his relationship to the victim and static/dynamic considerations, I would estimate his risk of re-offending in a sexual manner as being in the order of 15-20% within 5 years of release from custody, with the most significant clinical and dynamic considerations being his mental illness, suggestions that delusional thinking and/or hallucinations were associated with his offending; access to victims/family members; intimacy deficits and social isolation over many years; the potential use of sex as a maladaptive means of relieving stress/symptoms of mental illness; and his drug addiction, the use of methylamphetamine and other stimulant drugs being associated with increased sexual drive and disinhibition. 1. The plaintiff made the following submission regarding the aspect of Dr Furst's report dealing with the Child Protection (Offender's Registration) Act 2000 (NSW). That submission was as follows: Dr Furst stated those identified risks will require management through the statutory provisions of the Child Protection (Offenders Registration) Act 2000 (NSW) ("CPOR"). In his view reporting and police checks of the Child Protection Register should be sufficient to manage identified risks, coupled with appropriate psychological counselling. Dr Furst noted that assertive management of his schizophrenic illness and ensuring he does not have access to children in the future will also be necessary. 1. I note in that respect that the defendant observed that on release, he will be a registrable person per the Child Protection (Offenders Registration) Act 2000 (NSW) ("CPOR") and be subject to registration with his local Police and have ongoing obligations to provide certain personal information, travel plans and any changes to this information to Police and permit Police to enter premises to confirm his residence. 2. In Dr Furst's opinion, there is no other less restrictive option appropriate for the defendant. He stated: I would concur with the opinion of his treating team, as expressed to the Mental Health Review Tribunal in the report of Dr David Alchin and Dr Anna Farrar, dated 27 April 2022, that [DB] currently requires placement in a high secure environment, with the overall levels of relational, procedural, and physical security available in a forensic mental health service. Accordingly, I am of the opinion that [DB] should remain in the Bronte Unit of the Forensic Hospital. 1. Dr Furst cautioned that premature discharge may ensue in the event the defendant's status as a forensic patient was rescinded. He noted this would also substantially increase the defendant's risk of relapse into more severe psychosis and/or drug use and would also significantly increase the likelihood of future aggression and violence, posing a danger to both the defendant and the community. 2. Dr Furst expressed the opinion that classification as an involuntary patient under the MHA, a CTO, a Guardianship Order, and reporting obligations under the CPOR are all inadequate in terms of managing the defendant's identified treatment needs and risk issues. 3. Dr Furst recommended a period of five years would be an appropriate period for extension of the defendant's status as a forensic patient. He stated: The clinical and risk management needs identified in relation to [DB] are longstanding propositions, i.e. it is hard to see his clinical condition improving significantly in the short to medium term and the identified risks on the HCR-20 are also likely to persist. [DB] has only recently been admitted to the Forensic Hospital and is in the Bronte Unit, with the expectation that he would eventually progress to the Clovelly, Dee Why and Elouera units before being referred to a medium secure unit such as Morisset Hospital and/or considered for conditional release into the community as a forensic patient. Although there is no definitive timeline as to how long it will take [DB] to progress through those various units listed above and then into the community, it is likely to be a number of years before he is well enough to be released…and he will then require ongoing forensic status in order to manage him effectively in the community on conditional release under the supervision of the Mental Health Review Tribunal. Accordingly, I would regard it was more likely than not that his psychiatric rehabilitation and related risk management and supervision will take at least five years, probably longer, meaning that a period of extension of his status of 5 years is indicated Any other report of a qualified psychiatrist or registered phycologist or medical practitioner and 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 – ss127(2)(d)&(f) 1. The plaintiff relied upon the report of Dr Andrew White of 3 July 2020 which was prepared for the Tribunal and the report of Dr Anna Farrar and Dr David Alchin of 27 April 2022, again prepared for the Tribunal. It is unnecessary to summarise the terms of those reports. 2. Dr Matthews prepared a report for the Tribunal review for a scheduled hearing on 3 November 2022. In summarising the progress since the last Tribunal hearing, Dr Matthews noted that the defendant commenced clozapine treatment on 24 June 2022. On 26 July 2022, the defendant transitioned to the Clovelly subacute unit. He was noted to be pleasant and cooperative but his appreciation of his illness and past offending behaviour was considered to be "extremely superficial". He was noted to have reported various "bizarre, grandiose and religious delusional systems" that were associated with "perceptual disturbances". 3. Dr Matthews opined that it was the treating team's opinion that: 1. There were reasonable grounds for believing that care, treatment, and control of the defendant in his current condition was necessary for the protection of others from serious harm. 2. The defendant's clinical features were likely to worsen without appropriate supervision and treatment. Deterioration would be characterised by increasing symptoms of mental illness, such as persecutory delusions and a likely associated increase in aggressive behaviour. 3. There is no less restrictive placement option reasonably available that is consistent with safe and effective care. 4. The safety of the public is likely to be seriously endangered by the defendant's release in his current condition. 1. In terms of placement, Dr Matthews recommended that the defendant remain in the Forensic Hospital. She opined that he would benefit from further stabilisation of his psychotic symptoms through optimisation of his medication and improved participation in psychotherapeutic groups. Transferring the defendant to a less secure environment at this stage would increase the likelihood of exposure to stressors and triggers, decrease the likelihood of the defendant adhering to his management plan and the availability of formal supports. She stated: "This would likely increase the probability of future aggression and violence and hence increase the risk to himself and the public". Any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application – s127(2)(e) 1. The defendant has been periodically reviewed by the Tribunal and continues to be unfit to be tried. I note that there appears to have been a further hearing by the Tribunal with respect to the defendant on 3 November 2022. The level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence granted under this Act) – s127(g) 1. The defendant appears to have been compliant with all obligations to which he has been subject while a forensic patient. No concerns have been expressed in this regard. 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 – s127(h) 1. When imposing the limiting term Tupman DCJ noted this was not a case in which it was argued the defendant's mental illness rendered him incapable of not knowing that what he was doing was wrong. Her Honour stated the following in terms of the offender's prospects of rehabilitation and risk to the community: The early sexual assault offence, namely the indecent assault offence, is not relevant in assessing his prospects of rehabilitation or any risk to the community. There are, however, a number of offences involving violence which potentially give rise to issues surrounding his prospects of rehabilitation and level of risk to the community. A major issue surrounding this offender however is his very serious and entrenched mental illness, namely paranoid schizophrenia. 1. Further, her Honour went onto state: There can be no doubt that the offender has and continues to suffer from a severe mental illness. It is not clear that that played any significant part in his offending behaviour, albeit his stated reason for committing the sexual intercourse offence is at the very least bizarre and possibly delusional. He did, however, understand the nature and quality of his acts and that what he was doing was wrong. Equally the way he behaved, even though intentional when stabbing his brother, had a somewhat scattered flavour to it, as did some of the statements he made immediately afterwards. 1. Finally, her Honour noted: He would have to be seen as being at risk of institutionalisation given his report of feeling safe in a structured routine in gaol. His psychiatric condition presents something of a double-edged sword if it were to mean he was a significant risk to the community, but in reality I accept he is not. This offending came 15 years after the last offending and even longer since the last offence of violence. The offences of violence on his record present perhaps the most troubling issue in terms of rehabilitation and any risk to the community. He does not have a relevant history of sexual offending, let along any child sexual offending. The wounding offence occurred in the context of a dysfunctional family conflict. There is no evidence that he has paedophilic tendencies or interests, even though there does seem to be some suggestion in the evidence that his sexual touching of this complainant had been ongoing for some time. He does need proper monitoring and treatment, both whilst he remains in gaol and when he is released to the community, and probably would benefit from properly monitored treatment and supervision for the rest of his life, but certainly for a lengthy period. 1. As to remorse, Tupman DCJ observed: 'It was whilst he was being interviewed for that offence [the wounding offence] that he volunteered the sexual assault offences … There had been no complaint about that. The police knew nothing of it until he made the admissions he did.' 'He made immediate admissions to police in relation to the wounding offence, and not only immediate admissions in relation to the sexual assault offences, but disclosed the existence of offences of which the police had no other notice.' The Statutory Criteria satisfied for the purposes of the preliminary hearing First Limb – Unacceptable Risk of causing serious harm to others 1. There are a number of bases upon which a conclusion may be readily reached that the first limb of the statutory criteria for the assessment of the present application is satisfied: 1. The defendant has a treatment resistant schizophrenic illness that appears to have been complicated by periods of non-compliance with medication, lack of adequate response to medication prescribed, adverse effects of chronic drug abuse, a low level of intellectual functioning and a lack of adequate insight. 2. The defendant remains psychologically unwell, notwithstanding his transition to a sub-acute unit. Dr Matthews reports various bizarre, grandiose and religious delusional systems that are associated with the perceptual disturbances. 3. The defendant's appreciation of his illness and past offending remains superficial even though he is a cooperative and attentive to those problems. 4. Whilst Tupman DCJ remarked that the defendant's criminal history was not a significant one, the defendant's previous offending demonstrates a risk to safety of the community because he has demonstrated a capacity to engage in serious violent behaviour whilst armed with a weapon. The defendant committed sexual offences for which he has received no treatment. 5. Dr Furst opined that the defendant had a moderate to high risk of future violence reoffending if he ceased to be a forensic patient. Dr Matthews opined that the defendant's clinical features were likely to worsen without appropriate supervision and treatment, including increased symptoms of mental illness, such as persecutory delusions and an associated increase in aggressive behaviour. The Second Limb: "risk cannot be managed by other less restrictive means" 1. Notwithstanding the defendant's transition to a sub-acute ward in the Forensic Hospital, the most recent psychiatric reports as to his condition make clear that pre-mature release could substantially increase his risk. Further, the Tribunal noted "there is a good deal of mental health and social work to be done for the defendant to be safely released to the community". 2. Dr Furst expressed the view the only viable option for the defendant is to remain as a forensic patient in the Forensic Hospital. In his opinion any other less restrictive means are all inadequate in terms of managing the identified treatment needs and risk issues pertaining to the defendant. 3. Dr Matthews was of the opinion that there was no less restrictive placement option reasonably available for the defendant that is consistent with safe and effective care. 4. In my view, the evidence in the preliminary hearing establishes that the risk posed by the defendant cannot be managed by less restrictive means. CONCLUSION 1. For the above reasons, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order such that orders should be made appointing two health professionals to examine the defendant and to direct him to attend those examinations. 2. Having regard to the aforementioned reasons and, given the defendant's current limiting term expires on 28 December 2022, it is necessary to make an interim extension order to commence at midnight on 28 December 2022 for a three-month period. ORDERS 1. In all the circumstances, the Court makes the following orders: 1. Order pursuant to s 126(5) of the Act: 1. appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to this Court on the results of those examinations by a date to be fixed by the Court, and 2. directing the defendant to attend those examinations; 1. Order pursuant to ss 130 and 131 of the Act, that the defendant shall be subject to an interim order for the extension of his status as a forensic patient commencing from midnight 28 December 2022 for a period of three months; 2. Liberty is granted to the parties to approach the High Risk Offenders List Judge to obtain hearing dates for any application for an extension of the interim order or the final hearing of the matter, and to fix a timetable for the filing and service of evidence and submissions. ********** Amendments 15 November 2022 - corrected typographical errors. 27 March 2023 - The names of the defendant, his sister and the victim were removed to give effect to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), which prohibits the publication of any identifying or potentially identifying information of the juvenile victim. 27 March 2023 - The names of the defendant, his sister and the victim were removed to give effect to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), which prohibits the publication of any identifying or potentially identifying information of the juvenile victim. 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: 27 March 2023