Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v Randall (Preliminary) [2023] NSWSC 226 [2023] NSWSC 226 Hearing dates: 15 March 2023 Date of orders: 15 March 2023 Decision date: 15 March 2023 Jurisdiction: Common Law Before: Yehia J Decision: (1) Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW): (a) The Court appoints two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of such persons), to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) The Court directs the defendant to attend those examinations. (2) Pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant is subject to an Interim Order for the extension of his status as a forensic patient, commencing at midnight, on 24 March 2023, for a period of three months. (3) The proceedings are listed in the High-Risk Offenders Callover List on 16 March 2023, at 9:30 am. Catchwords: MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Status as a forensic patient – Interim Order extending status for three months – Unacceptable risk established – No less restrictive means available to manage risk – Assumption that matters alleged are proved – Proved to a high degree of probability – Interim extension granted Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B(d), 5D Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW) ss 51, 53, 56, 57(1), 57(2), 57(3) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 121, 122, 122(1)(b) 124(1), 126(5), 127, 127(1), 127(2), 127(2)(d), 127(2), 130, 131 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 14(b) Cases Cited: Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney-General (NSW) v Doolan (by his tutor Jennifer Thompson (No 2)) [2016] NSWSC 107 Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928 Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636 New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Chaplin [2019] NSWSC 471 State of New South Wales v Devaney (Final) [2022] NSWSC 60 State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Loto [2018] NSWSC 1522 Category: Principal judgment Parties: Attorney General of New South Wales (Plaintiff) Raymond Randall (Defendant) Representation: Counsel: A Rose (Plaintiff) N Evans (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2022/00375357 Judgment 1. By summons, filed on 13 December 2022, the Attorney General for New South Wales (plaintiff) seeks a further order against Mr Raymond Randall (defendant) to extend his status as a forensic patient, pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act or the Act). 2. The defendant does not oppose the orders sought in prayers 1(a), 1(b), 2 and 4 of the summons, namely: "(1) An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"): (a) Appointing two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) Directing the Defendant to attend those examinations. (2) An order pursuant to ss 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 24 March 2023 for a period of three months. (4) An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any judgment, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access." 1. The defendant opposes the application sought in prayer 3 of the summons, namely, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of two years from the date of the order. That is not a matter I have to decide on this application. The application before me is limited to an interim order for an extension of the defendant's status as a forensic patient for a period of three months, commencing at midnight, on 24 March 2023, and the appointment of relevant experts to furnish reports to the Supreme Court. The interim order is not opposed. However, it is incumbent upon me to be satisfied that an interim order is necessary. The Court must be satisfied that the matters alleged in the supporting documentation would, if approved, justify the making of an extension order. The plaintiff bears the onus of proof and persuasion to a high degree of probability. [1] Background Procedural History 1. In 2019, at the age of 59, the defendant was charged with one count of reckless wounding and one count of wound person with intent to cause grievous bodily harm. He was taken into custody on 6 March 2019. On 10 December 2019, Mr Randall was found unfit to be tried and was referred to the Mental Health Tribunal (Tribunal) under s 14(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act) (now repealed). 2. On 13 December 2019, the Tribunal found the defendant unfit, but adjourned the question as to whether he would become fit and ordered his transfer to and detention at Long Bay Hospital within the Long Bay Correctional Complex. [2] On 19 June 2020, the Tribunal determined that the defendant remained unfit and would not become fit to be tried within 12 months. [3] 3. On 2 September 2020, Baly SC DCJ conducted a special hearing under the MHFP Act and determined that Mr Randall had committed, on the limited evidence available, the offence of reckless wounding, but was found to be not guilty to the offence of wounding with intent to cause grievous bodily harm. [4] On 2 September 2020, her Honour sentenced Mr Randall to a limiting term of one year and 10 months, commencing on 6 March 2019 and expiring on 5 January 2021. He, consequently, became a forensic patient. 4. In her remarks on sentence, her Honour took into account the fact that the offence was a serious assault upon the victim involving the use of a knife as an aggravating factor, but also took into account that: "It was not planned, but rather, was spontaneously committed after some interaction on the part of the victim and some provocation on his part. It occurred after a chance meeting of the two men where there is a clear history of animosity involving, at least on the part of the accused, a perception that the victim owed him a motorcycle." [5] 1. Her Honour then referred Mr Randall to the Tribunal to be detained at a mental health facility for the duration of the limiting term. On 20 January 2021, he was transferred from prison to the Forensic Hospital at Malabar. On 1 February 2021, Baly SC DCJ made an order for Mr Randall to be detained at a mental health facility. [6] 2. On 16 December 2020, following the preliminary hearing of the Attorney General's application for an extension order, Button J made orders appointing two experts to examine Mr Randall and furnish their reports to the Court. [7] In making that order, his Honour noted the following: 1. Mr Randall suffers from a chronic and severe mental illness, and has done so for many decades. [8] 2. That the illness "not only causes him to possess beliefs divorced from reality, but also they are persecutory ones, upon which she relaxed" and "some of his delusions are graphic and extremely violent in nature. That is not only troubling in itself. It also gives rise to a concern that extreme beliefs may give rise to extreme responses to the". [9] 3. Mr Randall is "completely lacking in insight into his illness", "on the whole, resistant to treatment" and "the violent act that led to the current limiting term occurred in a mental health facility, where one might expect the behaviour of the defendant to be more constrained than if he was simply living in unrestricted setting". [10] 4. "There have been many occasions during which members of the public have indeed been endangered, even if charges were not laid". [11] 5. "The fact that the apartment of the defendant was subject of an explosion and fire (albeit many years ago), seen in combination with a more recent threat to pour petrol on a neighbour and Lycett, made by a patiently disturbed person, is troubling indeed". [12] 6. The alternative regime under the Mental Health Act 2007 (NSW) (Mental Health Act) is inadequate for managing Mr Randall's risks. [13] 1. On 25 March 2021, following the final hearing of the Attorney General's application, Johnson J made an order for the extension of Mr Randall's status as a forensic patient for a period of two years, commencing on 24 March 2021 and expiring on 24 March 2023 [14] . In making that order, his Honour noted: 1. The evidence points to Mr Randall having "a long-standing and deep-seated psychiatric disorder which is raise real concern with respect to the safety of other persons and the community generally". [15] 2. Mr Randall has "a history of violence, both in the community and in a mental health facility". [16] 3. "The risk posed by [Mr Randall] cannot be adequately managed by other less restrictive means". [17] 4. An extension order of two years "should provide time for [Mr Randall's] medical condition to be properly reviewed and for a treatment program to be put in place an environment with specialist psychiatric care is available". [18] Legislative Framework Mental Health and Cognitive Impairment Forensic Provisions Act 1. Section 121 of the MHCIFP Act empowers the Supreme Court to extend a person's status as a forensic patient. A Minister administering the Act may make an application for an extension order where the forensic patient is subject to either a limiting term, or an existing extension order: see s 124(1). 2. The objects of the Act enshrined in s 69 are relevant in that they pertain to the care supervision and treatment of forensic patients. They are as follows: 1. to protect the safety of members of the public; 2. to provide for the care, treatment, and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment; 3. to facilitate the care, treatment, and control of any of those persons in correctional centres or detention centres through Community Treatment Orders (CTOs); 4. to facilitate the provision of hospital care, or care in the community through CTOs, for any of those persons who require involuntary treatment; 5. to give an opportunity for those persons to have access to appropriate care; and 6. to protect the safety of victims of forensic patients and acknowledge the harm done to victims. 1. Section 122 sets out the test for when an extension order of a person's status as a forensic patient may be made: 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. The application is to be determined in accordance with Division 3 of the Act: 127 Determination of application for extension orders (1) The Supreme Court may determine an application under this Division for an extension order— (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant— (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order. 1. The Court's power to make an extension order is discretionary. Section 127(1) of the MHCIFP Act provides that the Supreme Court may determine an application to extend a person's status as a forensic patient by making the order, or by dismissing the application. If an order is made, it may be for a period not extending five years from the day on which it commences: see s 128(1)(b). Nothing prevents the Supreme Court from making a subsequent extension order against the same forensic patient: see s 129. 2. Section 127(2) (as set out above) lists a number of matters that the Court must have regard to in determining whether or not to make an extension order. I note that this list is non-exhaustive, and the Court may also have regard to "any other matter it considers relevant". I now address the relevant matters in s 127(2) of the Act. It should be noted that the structure and language of the regime has direct parables with the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act). Unacceptable Risk Test Standard of Proof 1. The determination of this application turns on whether the offender poses an "unacceptable risk of causing serious harm to others", and that risk cannot be adequately managed by less restrictive means. The Court must be satisfied of this to a "high degree of probability". 2. The term "to a high degree of probability" has been held to indicate a higher standard of proof than the normal civil standard, although it requires less than the criminal standard of beyond reasonable doubt. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..." 1. It is also appropriate to note the effect of the words "if and only if" in s 122(1). That section provides that a forensic patient can be made the subject of an order extending their status as a forensic patient "if and only if the Supreme Court is satisfied to a high degree of probability" of certain matters. McClellan CJ at CL stated in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [34] that those words: "emphasise 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". First Limb - Unacceptable Risk of Causing Serious Harm to Others 1. At present, the legislation does not define the term "unacceptable risk". However, the term has been held to have the same meaning under the MHCIPF Act as it does under the CHRO Act. Some insight into the term is provided by s 5D of the CHRO Act, namely, that in determining risk: "…the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence." 1. The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the CHRO Act: see Lynn v State of New South Wales (2016) 91 NSWLR 636 (Lynn). Basten JA in Lynn held at [126] that: "The nature of the risk … had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community." 1. The meaning of an "unacceptable risk" in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] as follows: "[23] As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word "unacceptable" – which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" – is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). (c) While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO." 1. Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 observed at [71] that: "unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15]. 2. In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J noted at [14]-[17] that there is a "matrix of considerations" relevant to the risk assessment, and two important matters are "the probability or possibility that the risk will manifest" and "the seriousness of the harm that will ensure if the risk were to manifest." It is possible that a risk is unacceptable because of the severity of the harm that would be caused by its eventuation rather than because of its likelihood: see State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73]; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43]. 3. The determination of whether there is an unacceptable risk is a discretionary exercise. I must make an assessment based on the likelihood of a risk eventuating and the potential consequences if it does eventuate. 4. It is apt to note that the right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an "unacceptable risk". However, consideration of an offender's circumstances, including the offender's right to liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: see Lynn at [44] per Beazley P at [131] and per Basten JA at [149]. 5. The meaning of "serious harm" has also been considered by this Court extensively. RA Hulme J in Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928 at [16] said that "serious harm" could concern either physical or psychological harm. His Honour accepted the submission that in the event that the harm is physical, it does not have to satisfy the threshold of "grievous bodily harm" but must be more than "actual bodily harm", while if the harm is psychological, it must be "something more than emotions such as fear or panic". Second Limb – The Risk Cannot be Adequately Managed by Less Restrictive Means 1. Section 122(1)(b) of the MHCIFP Act requires that the Court consider whether the defendant's risk to the community may be managed by "less restrictive means". The plaintiff bears the onus of proving the risk cannot be managed by less restrictive means. This must also be proved to a high degree of probability. 2. Garling J, in Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288, interpreted the meaning of "adequately managed", stating at [63]: "I would take the use of the phrase "adequately managed" to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community." 1. His Honour further noted, at [64]: "The notion that mentally ill individuals ought receive their treatment in the community is well recognised by the community and is entrenched in the Mental Health Act: s 12, s 38, s 53 and, in particular, s 68. However, the position is novel with respect to a forensic patient who is not mentally ill, or mentally disordered, but as is the case here, a person with an intellectual disability." 1. In making this assessment, I will need to consider alternative orders that could be made under the Mental Health Act or the Guardianship Act 1987 (NSW) (Guardianship Act). 2. Justice Adamson, in Attorney-General (NSW) v Doolan (by his tutor Jennifer Thompson (No 2)) [2016] NSWSC 107 noted at [96]: "… I consider that the question whether "means" are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance." 1. Her Honour recognised that one such "less restrictive means" of managing the defendant's risk is their classification as an involuntary patient under the Mental Health Act. Her Honour noted four key differences between the regime that deals with forensic patients and the (less restrictive) regime that deals with involuntary patients. They are as follows: 1. Detention: Forensic patients remain in detention unless certain criteria for release are satisfied, while involuntary patients are not detained unless they are mentally ill or mentally disordered in which case the maximum period of detention is three months following an inquiry (see [109]-[110]); 2. Release from detention: A forensic patient cannot be released without an independent expert risk assessment report, while an involuntary patient must be discharged by the Tribunal "if no longer satisfied on the balance of probabilities that the patient is mentally ill". No independent risk assessment report is required (see [111]-[113]); 3. Imposition of conditions while patient is living in the community: The Tribunal may impose conditions for a forensic patients' accommodation, treatment, medication, conduct, case management, and drug-testing, while CTOs for involuntary patients (outlined in more detail below) relate only to the person's treatment (see [114]-[116]); 4. Consequences of breach of conditions: If a forensic patient breaches a condition of their release, they can be recalled and detained by the Tribunal, while involuntary patients are subject to the oversight of the director of community treatment at the relevant mental health facility (see [117]-[118]). 1. Therefore, it is apt for me to consider a CTO as an alternative means of managing the risk of serious harm Mr Randall poses. A CTO is an order made under s 51 of the Mental Health Act authorising the compulsory treatment of a person. Section 53 provides for the circumstances in which a CTO may be made: 53 Determination of applications for community treatment orders (1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order. (2) For that purpose, the Tribunal is to consider the following— (a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order, (b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order, (c) a report as to the efficacy of any previous community treatment order for the affected person, (d) any other information placed before the Tribunal. (3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that— (a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and (b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and (c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment. (3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted. (4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person. (5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied— (a) the affected person has previously refused to accept appropriate treatment, (b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness, (c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission), (d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person. (6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force. (7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required— (a) to stabilise the condition of the affected person, and (b) to establish, or re-establish, a therapeutic relationship between the person and the person's psychiatric case manager. (8) The Tribunal may order that the discharge of an involuntary patient for whom a community treatment order is made be deferred for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so. 1. The form and duration of a CTO is provided for in s 56 of the Mental Health Act: 56 Form and duration of community treatment orders (1) A community treatment order is to— (a) nominate the declared mental health facility that is to implement the treatment plan for the affected person, and (b) require the affected person to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan. (2) A community treatment order ceases to have effect at the end of the period specified in the order or, if no period is specified, 12 months after the order is made. Note— Section 53 (6) specifies that the maximum period for an order is to be 12 months. (3) A community treatment order has no effect while an affected person is detained in a mental health facility (otherwise than under this Part), or is a voluntary patient. (4) The fact that an affected person is the subject of proceedings before the Tribunal does not, unless the Tribunal otherwise orders, affect the operation or duration of the community treatment order. (5) The time for which a community treatment order is in force does not cease to run during any period in which this section provides that it has no effect. Note— The Tribunal may vary or revoke a community treatment order in accordance with section 65. 1. A person subject to a CTO is required to comply with that order (s 57(1)). The Director of Community Treatment for the declared mental health facility which is implementing a treatment plan under a CTO is also empowered to take all reasonable steps to ensure that medication is administered, and services are provided in accordance with the order, including without the consent of the affected person (s 57(2) and (3)). 2. Section 58 of the Mental Health Act deals with breaches of a CTO and s 59 authorises that the Director of Community Treatment to request police assistance in the event that the CTO is breached. 3. Another "less restrictive" means of addressing a person's risk to the community is through the appointment of a Guardian by the New South Wales Civil and Administrative Tribunal (NCAT) under the Guardianship Act. Risk Assessment Report provided by Dr Kerri Eagle (s 127(2)(c)) 1. Dr Eagle assessed Mr Randall at the Forensic Hospital on 29 July 2022. Dr Eagle also assessed Mr Randall in 2020, as part of the Attorney General's first application for an extension order. Dr Eagle opined that Mr Randall has schizoaffective disorder which has been resistant to treatment. She states that this is a chronic psychotic illness and neurodevelopmental disorder. Mr Randall was being treated with antipsychotic and mood stabilising medications. His symptoms include psychosis, which encapsulates "thought disorder, grandiose and persecutory delusions, negative symptoms and functional impairment", with reports of manic symptoms during relapses. [19] 2. Dr Eagle notes that Mr Randall's "compliance with treatment has not been effectively managed in the community, even with the benefit of a CTO" and that "attempts to enforce compliance have frequently required police assistance and revocation resulted in highly volatile siege type situations involving a knife on multiple occasions". [20] 3. Dr Eagle states that Mr Randall may have a substance use disorder in remission in a controlled environment, having previously used cannabis and alcohol. He also appears to have major neurocognitive disorder with evidence of cognitive decline that is not entirely explained by his mental illness, but which interferes with his independence in everyday activities. Dr Eagle also believes that Mr Randall has adult antisocial personality traits. [21] 4. Dr Eagle identified that Mr Randall has a moderate to high loading of historical risk factors for future violence and identified a number of clinical risk factors that Mr Randall has displayed over the last six months. [22] These behaviours have included ongoing problems with insight into his mental illness and offending; active symptoms of a major mental disorder; and some persistent problems with treatment or supervision response. 5. In terms of future risk management, Dr Eagle acknowledges that Mr Randall's treating team has developed a carefully considered plan for him to transition from the Forensic Hospital into supported accommodation in the community with mental health support. However, she still identified several potential future problems with his risk management in the community, including: 1. the capacity of community mental health services in Bowral to manage Mr Randall's illness and behaviours in the absence of a forensic order because of the difficulties in enforcing CTOs; [23] 2. the capacity of non-forensic inpatient units to manage Mr Randall's illness and behaviours during inpatient admissions; [24] 3. the fact that Mr Randal "has displayed some early signs of incorporating other residents and/or staff into his delusions which may increase his potential risk towards those individuals" in the supported living accommodation that has been arranged for him in Mittagong which Dr Eagle says "may increase his potential risk towards those individuals"; [25] 4. Mr Randall's "poor insight into his stillness and need for treatment" places him at risk of non-compliance in the future in the absence of assertive mandated treatment; [26] and 5. Mr Randall "would be at a significantly increased risk of deterioration during transition into the community with early signs of this destabilising effect already occurring in his expression of persecutory beliefs about the other resident "at the accommodation", which means that he would be "vulnerable to deterioration or fluctuations in his mental state", and susceptible to using alcohol as a coping mechanism. [27] 1. Dr Eagle opines that given Mr Randall's current presentation, he does pose a risk of causing serious harm to others if he ceases to be a forensic patient, with the greatest risk being during his transition out of the community. [28] Dr Eagle recommends that "the least restrictive form of safe and effective management of Mr Randall's risk of harm would be for the forensic order to continue as he transitions into the community". [29] Any other report of a qualified practitioner provided in support of the application (s 127(2)(d)) 1. Dr Jonah Willing and Dr Anna Farrar prepared a report for the Tribunal, dated 16 November 2020. Mr Randall was assessed using the Montreal Cognitive Assessment tool. He scored 12 out of 30, representing a significant impairment including in the areas of executive function and memory. 2. Using the HCR-20v3 risk assessment tool, Mr Randall's treating team concluded that he had a high loading of historical risk factors for future violence, a moderate to high loading dynamic risk factors for future violence, and that he fell into a group of people of high concern with respect to future episodes of violence. Occupational Therapy Report of Suzanne Demetz 1. Ms Demetz assessed the level of care and support that Mr Randall needs. She concluded that he required nursing care, surveillance with severe behavioural and cognitive disability, and assistance and or supervision with basic activities of daily living. Dr Ching Long Ho and Dr Reece Anderson Report – 15 February 2021 1. The authors states that Mr Randall continued to have "persistent paranoid delusions against the victim of the index offence. He remained fixated that the victim had stolen his belongings and that he was left with no choice but to confront him violently". 2. Since receiving treatment in the highly supervised environment of the Forensic Hospital, Mr Randall was compliant with medications and his "violent ideation and instability have been partially ameliorated". [30] The treating team recommended that Mr Randall required "a further period of treatment in the current inpatient setting to further stabilise his psychotic illness" after which he would benefit from "having stable supported accommodation, where adherence to medications can be supervised" with the support of the community mental health services and the National Disability Insurance Scheme (NDIS). [31] 3. Mr Randall remained un-fit. It was concluded that Mr Randall's safety and that of the public may be severely endangered if he was to be released into the community at this time, and that his placement in the Forensic Hospital represented the least restrictive option for his safe and effective care. [32] Dr Miriam Saffron and Dr Kirsty MacDonald's Report – 27 July 2021 1. Mr Randall underwent a cognitive assessment in March 2021 which revealed that his general cognitive functioning was in the 'Extremely Low' range, and below what is expected for his diagnosis of schizophrenia, indicating severe memory impairment. He also underwent an MRI brain scan on 31 May 2021 which showed "mild generalised cerebral atrophy but no significant intracranial abnormality". [33] 2. It was noted that Mr Randall was verbally aggressive to staff on 15 May 2021 in connection with receiving his depot injection. His delusional beliefs about the victim of the index offence continued at that time. The authors of the report confirmed that "the safety of Mr Randall and/or public would be severely endangered by his release" and that "there is no less restrictive placement option available that is consistent with safe and effective care at this time". [34] Dr Kirsty MacDonald's Report – 18 February 2022 1. The report was prepared for the Tribunal. At the time of its preparation, Mr Randall remained "actively psychotic, although was not troubled by these symptoms. He displayed little insight into his mental illness or offending behaviour". [35] 2. Dr MacDonald also noted that the treating team had identified suitable accommodation for Mr Randall to transfer to in Mittagong. He was well known to the Bowral Community Mental Health Team and his family were supportive of the proposed NDIS plan. Although escorted leave from the Forensic Hospital to the accommodation being sought, ultimately Dr MacDonald stated that "the safety of Mr Randall and/or the public would be seriously endangered by his release" and that "there is no less restrictive placement option available that is consistent with safe and effective care at this time". [36] 3. Dr MacDonald also prepared a report, dated 7 August 2022, in which she states that Mr Randall remained "actively psychotic". She noted, however, that Mr Randall had had four episodes of escorted leave to the nominated accommodation and around Malabar where he "had been adherent with directions and there have been no management concerns". It remained Dr MacDonald's opinion at that time that "the safety of Mr Randall and/or the public would be seriously endangered by his release" and that "there is no less restrictive placement option available that is consistent with safe and effective care at this time". [37] Any order or decision made by the Tribunal relevant to the application (s127(2)(e)) 1. A summary of the orders made by the Tribunal is helpfully set out in the plaintiff's written submissions. [38] Mr Randall was reviewed on 11 August 2022. On 18 August 2022, the Tribunal ordered that he be detained at the Forensic Hospital but granted him both escorted and supervised leave. In its reasons dated 12 September 2022, the Tribunal noted that Mr Randall has been assessed as suitable for a NDIS package and that the treating team had located accommodation for him in Mittagong, and that it proposed escorted day leave and supervised leave "to gradually introduce Mr Randall to home caring staff". [39] The Tribunal confirmed that Mr Randall remained unfit. [40] 2. The material presently before the Court suggests that Mr Randall will be eligible for a CTO if he ceases to be a forensic patient, and the Bowral Community Mental Health Service have indicated they would provide case management services for his ongoing treatment. A NDIS package has been prepared and has the support of Mr Randall's family. 3. During the course of today's proceedings, the Court was informed that one of the developments has been that the Tribunal has granted the defendant supervised overnight leave at the Mittagong accommodation. He spent four nights there between 6 February 2023 and 10 February 2023. In the week commencing 6 March 2023, he spent five nights at the Mittagong accommodation. 4. There is an application before the Tribunal tomorrow for conditional release. At this stage, it is uncertain as to what orders will be made by the Tribunal and when they will commence. 5. Although a community treatment plan is being prepared, I am satisfied, at this stage, and on the material before me, that the orders sought are necessary. The evidence establishes that Mr Randall requires a more assertive approach to his treatment that only the granting of an extension order can provide to ensure the necessary oversight. Conclusion 1. The task for this Court is an evaluative one, to be undertaken in the overall context of the primary objective of the MHCIFP Act. I am satisfied that Mr Randall poses an unacceptable risk of causing serious harm to others if his status as a forensic patient changes. Mr Randall's past conduct includes a pattern of criminal offending. There is a gap in his criminal record between 2003 and 2019. However, in 2015 he threatened to pour petrol on the neighbour and set them alight, but was not charged. 2. I have also had regard to the likelihood of Mr Randall reoffending if he was no longer a forensic patient, based on the assessment by Dr Eagle and the assessment of his treating team. The gravity of Mr Randall's reoffending would be moderate to high, having regard to his recent episodes of violence. 3. On the material before me on this application, I am satisfied to a high degree of probability that Mr Randall's risk cannot be adequately managed by less restrictive means. 4. Accordingly, I make the following orders: 1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW): 1. The Court appoints two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of such persons), to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. The Court directs the defendant to attend those examinations. 1. Pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant is subject to an Interim Order for the extension of his status as a forensic patient, commencing at midnight, on 24 March 2023, for a period of three months. 2. The proceedings are listed in the High-Risk Offenders Callover List on 16 March 2023, at 9:30am. Endnotes 1. Attorney General of New South Wales v Blanks [2021] NSWSC 303 at [74] and [75]. 2. Attorney General for NSW v Randall (Final) [2021] NSWSC 275 at [16]. 3. Ibid at [17]. 4. Exhibit JP-1, Tab 16. 5. Exhibit JP-1, Tab 16 at p 1. 6. Exhibit JP-1, Tab 20. 7. Attorney General of NSW v Randall [2020] NSWSC 1821. 8. Ibid [38]. 9. Ibid [39]. 10. Ibid [40]. 11. Ibid [42]. 12. Ibid [43]. 13. Ibid [44] – [45]. 14. Attorney General for New South Wales v Randal (Final)l [2021] NSWSC 275. 15. Ibid [65]. 16. Ibid [67]. 17. Ibid [78]. 18. Ibid [80]. 19. Exhibit JP-1, Tab 4 at [59]. 20. Ibid at [59]. 21. Ibid at [61] and [62]. 22. Ibid at [66] and [68]. 23. Ibid at [70.1]. 24. Ibid at [70.1]. 25. Ibid at [70.2]. 26. Ibid at [70.4]. 27. Ibid at [70.5]. 28. Ibid at [74.4]. 29. Ibid at [74.5]. 30. Exhibit JP-1, Tab 24 at p 8. 31. Ibid. 32. Ibid at p 10. 33. Exhibit JP-1, Tab 25 at p 6. 34. Ibid at p 11. 35. Exhibit JP-1, Tab 27 at p 7. 36. Ibid at p 12. 37. Exhibit JP-1, Tab 32 at pp 219-220. 38. Plaintiff's Written Submissions (PWS) [120]-126]. 39. Exhibit JP-1, Tab 41 at p 5. 40. Ibid at p 5. Amendments 15 March 2023 - Error on cover page 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: 15 March 2023