Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Windle (No. 2) [2017] NSWSC 94 Hearing dates: 16 February 2017 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Common Law Before: Johnson J Decision: Interim detention order made under Crimes (High Risk Offenders) Act 2006 for 28 days from 28 February 2017. Catchwords: HIGH RISK OFFENDER - serious violent offender - interim supervision order made on 14 December 2016 together with order for psychiatric examination - Defendant with significant psychiatric illness - Defendant's mental condition deteriorated and now held in mental health facility - Plaintiff seeks interim detention order in light of changed circumstances - interim detention order made Legislation Cited: Crimes (High Risk Offenders) Act 2006 Mental Health (Forensic Provisions) Act 1990 Cases Cited: State of New South Wales v Windle [2016] NSWSC 1816 Texts Cited: --- Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Andrew Robert Windle (Defendant) Representation: Counsel: Ms G Wright (Plaintiff) Mr H White (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2016/357194 Publication restriction: --- JUDGMENT 1. JOHNSON J: On 14 December 2016, I made orders by way of a high risk violent offender interim supervision order ("interim supervision order") and an order for psychiatric examination with respect to an application by the Plaintiff, the State of New South Wales, concerning the Defendant, Andrew Robert Windle, under the Crimes (High Risk Offenders) Act 2006: State of New South Wales v Windle [2016] NSWSC 1816. 2. As that judgment makes clear, the application at that time by the Plaintiff was for a high risk violent offender extended supervision order ("extended supervision order") to be made at the final hearing (with an interim supervision order in the meantime), accompanied by an order for psychiatric examination. 3. I will not repeat the matters contained in the earlier judgment, which should be read in conjunction with the judgment I am presently delivering. It will be apparent that I had significant concerns with respect to aspects of the Defendant so that I was satisfied to the requisite extent that the orders sought by the Plaintiff should be made. 4. I note that the Defendant's sentence of imprisonment will expire completely by effluxion of time on 28 February 2017, that is some 12 days away. 5. Unfortunately, the Defendant's position has worsened since those orders were made on 14 December 2016 in the sense that the psychiatric difficulties which he has experienced have deteriorated. 6. In light of material that has come to the attention of the Plaintiff since 14 December 2016, the Plaintiff filed an Amended Summons on 2 February 2017 in which there is sought a high risk violent offender interim detention order ("interim detention order") to operate from 28 February 2017 for a period of 28 days. Consequential orders are also sought. 7. This judgment relates to the Plaintiff's amended claim for an interim detention order. 8. I note that the final hearing of the matter is fixed for 3 April 2017. 9. The evidence upon which the Plaintiff relies in support of the application for an interim detention order is contained in affidavits of Paul Nash affirmed 1 February 2017 and 13 February 2017 together with an affidavit of Karen Langdon affirmed 10 February 2017. 10. Those affidavits reveal the following. On 19 December 2016, Dr Adrian Keller, acting as the delegate of the Secretary of the Ministry of Health, made an order under s.55 Mental Health (Forensic Provisions) Act 1990 ordering that the Defendant be transferred to a mental health facility upon the basis that he was a mentally ill person. As a result of that order, the Defendant was transferred to a mental health facility, being the Long Bay Hospital, where he is presently held. Dr Keller's order was based upon psychiatric reports which had been provided, indicating that the Defendant was experiencing persecutory delusions, control delusions and hallucinations. 11. On 21 December 2016, Dr Gerald Chew, a consultant psychiatrist with Justice Health and the Forensic Mental Health Network, prepared a report for the State Parole Authority. That report indicated that there had been a difference of opinion between the psychiatrists in the past as to whether, in addition to the Defendant's severe mixed personality disorder, he had a psychotic illness. Dr Chew reported that a primary psychotic disorder like schizophrenia seems likely and that the Defendant needed to be further assessed and managed. 12. One of the orders made by the Court on 14 December 2016 was that the Defendant should be examined by psychiatrists for the purpose of the final hearing. Dr Anthony Samuels has undertaken that task and has furnished a report dated 6 January 2017. That report has been relied upon as well by the Plaintiff on the present application. 13. Dr Samuels considers that the Defendant has an evolving mental illness, including an emerging psychotic illness, which is not yet under control. Dr Samuels referred to the Defendant's delusional thinking and command hallucinations to self-harm. He expressed the view that, until the Defendant's mental state was more stable, it would be premature to release him into the community on an extended supervision order. Dr Samuels considered that the Defendant should be treated and his mental health stabilised, in the Mental Health Unit of Long Bay Hospital or the Forensic Hospital, prior to any transfer that would see the Defendant being released into the community. 14. A supplementary prerelease report dated 18 January 2017 was provided by Community Corrections to the State Parole Authority. That report noted that the Defendant had been transferred from the mainstream prison to the Long Bay Hospital on 6 January 2017 and that the Defendant had agreed to undertake a medication regime, as recommended by the treating psychiatrists. 15. The affidavit of Ms Langdon makes clear that, regrettably, there is no suitable accommodation available in the community for the Defendant. This is particularly so because of the ongoing need for intensive psychiatric treatment. 16. A reading of my judgment of 14 December 2016 will provide some background to the psychiatric issues which have affected the Defendant over the years, and their likely interrelationship with his offending history. 17. The judgment of 14 December 2016 addressed various statutory criteria in the Crimes (High Risk Offenders) Act 2006 for the purpose of the interim supervision order then sought. 18. It is necessary, given the altered application that is now made, for the Court to consider whether the interim detention order sought by the Plaintiff ought be made. 19. I note at the outset that Mr White, counsel for the Defendant, has adopted a very helpful and realistic approach on the present application. His concern, of course, is that the interests of his client be protected. In the present circumstances, and upon the basis of the evidence before the Court, he accepted that there is considerable difficulty with the concept of the Defendant being released into the community on an interim supervision order. 20. Mr White acknowledged the strength of the evidence with respect to the need for psychiatric treatment, although he observed that it is perhaps regrettable that a number of these issues had not been identified and grappled with before. It would seem that there has been some past dispute amongst the psychiatrists as to the appropriate diagnosis of the Defendant, but that now seems to be resolved sufficiently so that there is an identified psychotic condition which is being treated. 21. I return then to the relevant provisions in the Crimes (High Risk Offenders) Act 2006. Section 18B of the Act provides for the making of an interim detention order with respect to a high risk violent offender. 22. I accept that s.18B does not require proof that adequate supervision will not be provided by an extended supervision order, as would arise at a final hearing in a claim for a continuing detention order by reason of s.5G(1) of the Act. I observe, however, that the evidence is sufficient, at this point at least, to demonstrate that adequate supervision would not be provided, certainly on an interim basis, by a supervision order with respect to the Defendant. 23. It is necessary to have regard to the provisions in s.17 of the Act for the preliminary purpose of considering whether an interim detention order should be made. I repeat the reasoning in my judgment of 14 December 2016 and express, for the purpose of s.18B, that I am satisfied that an interim detention order should be made. 24. I note that the interim detention order, as a result of s.18C of the Act, will operate for a period of 28 days from 28 February 2017 although it may be renewed in accordance with s.18C(2) of the Act. 25. Accordingly, I will make that order in due course. 26. There is an aspect to which I wish to return. I have mentioned that the Defendant is the subject of an order made on 19 December 2016 under s.55 Mental Health (Forensic Provisions) Act 1990. That has the effect that the Defendant has been transferred from a "correctional centre" to a "mental health facility", albeit within a "correctional centre". Accordingly, the Defendant is presently a "correctional patient" for the purpose of s.41(1) Mental Health (Forensic Provisions) Act 1990. I note that s.64(b) provides that a person ceases to be a correctional patient if, relevantly, the person's sentence of imprisonment expires. It is the case, of course, that the Defendant's sentence of imprisonment will expire completely on 28 February 2017. 27. The effect of making an interim detention order will mean that the Defendant must be retained in custody in accordance with an order under the Crimes (High Risk Offenders) Act 2006. It is of great importance, in the case of the Defendant, that the continuing detention to which he will be subject as a result of the interim detention order which I will make, will involve him being housed in a mental health facility, either at the Long Bay Hospital or the Forensic Hospital. This is entirely consistent with the medical evidence relating to the treatment of the Defendant since he was transferred to a mental health facility. 28. It is the expectation of the Court that the implementation of the interim detention order which the Court makes will place the Defendant at one of those two places and nowhere else. It would be entirely inconsistent with the intention and terms of the Court order that the Defendant may be at risk of being transferred back to a mainstream prison setting. I note that it is not being suggested that that is what may happen. However, it is very important that it does not happen in this case. 29. The purpose of this interim detention order is to maintain the status quo where the Defendant is receiving significant psychiatric treatment presently at the Long Bay Hospital but with, as I have mentioned, the suggestion by psychiatrists that the Forensic Hospital may be an alternative. I note as well that the order that I am going to make will be a temporary one and that this issue will be revisited no doubt at the final hearing of the matter in early April 2017. 30. I should mention that the Court has been informed that the Defendant is subject to the supervision of the Mental Health Review Tribunal, and that a first review of his case by that Tribunal is scheduled to take place on 2 March 2017. It may be that any report from that Tribunal with respect to that review will assist a Judge in the determination of the application for final relief in this case. 31. It has been submitted by Ms Wright, counsel for the Plaintiff, that I should leave in place the interim supervision order made on 14 December 2016. The Amended Summons (as drafted) sought the revocation of that order but, upon reflection, it has been submitted that that order should remain in place as against the possibility that it may need to be acted on. Although there is clearly some tension between the concurrent existence of an interim supervision order and an interim detention order operating from the same date with respect to the same person, I understand what is intended in this respect and I have no difficulty with it. 32. It will be clear, however, that the operative order, for the purpose of the 28-day period from 28 February 2017, will be the interim detention order. However, in the circumstances of this case, there is utility in the approach which has been suggested so I will leave the interim supervision order made on 14 December 2016 in place. 33. Accordingly, by reference to paragraph 2 of the Amended Summons, I make the following orders: 1. Pursuant to s.18B Crimes (High Risk Offenders) Act 2006, I order that the Defendant be subject to a high risk violent offender interim detention order from 28 February 2017 for a period of 28 days. 2. Pursuant to s.20(1) Crimes (High Risk Offenders) Act 2006, the Court issues a warrant for the committal of the Defendant to a correctional centre, comprising a mental health facility, for the duration of the interim detention order referred to in the preceding paragraph. 3. I grant the parties liberty to apply on one day's notice, with any such application to be made to my Associate in the event that there is any issue arising from the orders which I have just made. 1. Counsel have given consideration to further orders that ought be made, in the light of the additional orders which I have so far made. 2. It will be apparent that the order for psychiatric examination by two psychiatrists made on 14 December 2016 was directed to the Plaintiff's then application, which was for an interim supervision order and then an extended supervision order. Dr Samuels has provided a report which was directed to those matters and other relevant features. The Court has also been informed that Dr Jonathon Adams has provided a report dated 15 February 2017. 3. In the circumstances as they now stand, the issues at the final hearing will involve the question whether a continuing detention order should be made or, in the alternative, an extended supervision order. Section 7(4) Crimes (High Risk) Offenders Act 2006 provides for an order for examination and the provision of expert reports. In the circumstances of this case, I am satisfied that the order made on 14 December 2016 for the Defendant to be examined by two psychiatrists, is sufficient to cover the various alternatives which are the subject of the Plaintiff's Amended Summons. It is open to the parties to inquire of Dr Samuels and Dr Adams, and it is open to the doctors to respond in reports directed to the Court with respect to the Plaintiff's amended claim which seeks a continuing detention order and, in the alternative, an extended supervision order. I express that view, for more abundant caution, in case there was any concern whether the order presently made covered that extended range of options. 4. In addition, I vary Order 4, as made by Prothonotary Kenna on 23 December 2016, by replacing that order and, instead, ordering that the matter be listed on 15 March 2017 to hear the Plaintiff's application for a renewal of an order that the Defendant be subject to an interim detention order for a period of 28 days from 28 March 2017. 5. Otherwise the orders made on 23 December 2016 (as amended on 3 February 2017) will stand. ******** 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: 20 February 2017