Supreme Court New South Wales Medium Neutral Citation: Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 Hearing dates: 24 February 2017 Date of orders: 24 February 2017 Decision date: 02 March 2017 Jurisdiction: Common Law Before: Davies J Decision: The Court orders: 1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"): a. The Court appoints two registered psychologists to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations by 5:00pm on 21 April 2017. b. The Defendant is directed to attend those examinations. 2. Pursuant to clauses 10 and 11 of Schedule 1 of the Act that an interim extension order be made by the Court for a period of 28 days from 4 March 2017. 3. The plaintiff to serve any affidavits on which it relies by 5:00 pm on 5 May 2017. 4. The plaintiff to file and serve submissions on which it relies by 5:00 pm on 9 May 2017. 5. The defendant to serve any affidavits on which he relies by 5:00 pm on 16 May 2017. 6. The defendant to file and serve submissions on which he relies by 5:00 pm on 18 May 2017. 7. The matter be listed for final hearing on 22 May 2017 at 10:00 am with an estimate of 1 day. 8. Stand the matter over to 10am on Tuesday 28 March 2017 to hear an application before a duty judge to renew the interim extension order for a further 28 days. 9. Liberty to apply to relist the matter on one days' notice. Catchwords: CRIMINAL LAW - forensic patient – serious sexual offences - limiting period about to expire – application for interim extension order – test for "unacceptable risk" – whether test in Lynn v State of NSW applies – whether defendant poses an unacceptable risk of causing serious harm to others – whether risk can be adequately managed by less restrictive means – absence of mental illness but defendant functioning in moderate to mild range of intellectual disability – high risk of serious sexual offending – no present proposal for management by less restrictive means – interim orders made Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 Attorney General of New South Wales v McGuire [2013] NSWSC 1862 Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 Lynn v State of New South Wales [2016] NSWCA 57 New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 R v Engert (1995) 84 A Crim R 67 State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 State of New South Wales v Thomas (Final) [2011] NSWSC 307 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Category: Procedural and other rulings Parties: Attorney-General for the State of New South Wales (Plaintiff) Warren Boyce (Defendant) Representation: Counsel: G Wright (Plaintiff) S Kluss (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/16287 Judgment 1. The Attorney-General made application under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA) for an interim extension order in respect of the Defendant. Such an application may be made in respect of a forensic patient only if the forensic patient is subject to a limiting term or an existing extension order. 2. On 24 February 2017 I made an interim extension order and an order appointing two psychologists to conduct examinations of the Defendant and furnish reports to the Court. These are my reasons for so doing. 3. The Defendant was charged that on 5 September 2013 he did commit an act of indecency towards a person then under the age of ten years, namely five years of age. He was further charged that on the same day, being a registrable person, he did fail without reasonable excuse to comply with his reporting obligations. These are the index offences. On 28 July 2014 Judge King SC found that the Defendant was not fit to stand trial. He referred the matter to the Mental Health Review Tribunal. 4. A special hearing took place before Judge Ellis in the District Court who on 6 October 2015 found the Defendant guilty on both counts. In respect of count 1 his Honour imposed a limiting term of three years to commence 5 March 2014 and expire 4 March 2017. In respect of count 2 his Honour imposed a limiting term of 12 months commencing 5 September 2013 and expiring 4 September 2014. 5. It is in the circumstances that the limiting term will expire on 4 March 2017 that the Attorney-General now seeks an order that the Defendant be subject to an interim extension order under the Act and for the appointment of two qualified psychiatrists, psychologists and/or registered medical practitioners to conduct separate examinations of the Defendant and to furnish reports to the Court. The orders are not opposed by the Defendant but without prejudice to the Defendant to argue at the final hearing that an extension order should not be made. 6. On 12 November 2015 the Mental Health Review Tribunal determined under s 24 of the Act that the Defendant was suffering from an intellectual disability with no evidence of a mental illness and ordered that he be detained in the Additional Support Unit at Long Bay. Because the Defendant is the subject of a limiting term and was detained in custody pursuant to an order made under s 24 of the Act he is a "forensic patient" within the meaning of the definition of that term in s 42 of the Act. Section 54A of the Act gives power to the Court to extend a person's status as a forensic patient in accordance with Schedule 1 to the Act. 7. The test for making an extension order is set out in cl 2 of Sch 1 as follows: 2 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 Schedule 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 he or she ceases being 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. 1. Section 40 sets out the objects of Pt 5 of the Act which deals with forensic patients. The first of such objects is the protection of the safety of members of the public. The remaining three objects are directed towards the care and rehabilitation of the forensic patient. 2. In Attorney General of New South Wales v McGuire [2013] NSWSC 1862 I noted at [10] that those objects relevantly accorded with the two objects in the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA). I said at [12] that because the terms of the two legislative provisions are so closely aligned that I considered that the learning that has grown up in relation to the CHROA should be appropriately applied to Schedule 1 of the MHFPA. This view was followed by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [7]-[8] and by Adamson J in New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 at [54]. 3. The task of the Court, therefore, at the preliminary stage for an interim order is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by Magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. 4. In McGuire I made reference to a number of early decisions including my own decision in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 for the purpose of identifying the appropriate test to be applied for the first limb under Schedule 1 of the MHFPA. Since that time the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 said that the test I there proposed should not be followed insofar as that approach included having regard to: The serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order. 1. In that way the Court of Appeal held that the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not a relevant consideration in the determination of whether a person poses an "unacceptable risk" for the purposes of s 5E(2) of the CHROA. The correct approach to the first limb of cl 2 of Sch 1 is RA Hulme J's formulation in State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58], namely, that the words "unacceptable risk" should be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act: Lynn at [58] (noting that the reference to [38] appears to be a transcription error). 2. Counsel for the Defendant argued that the approach taken to the issue of whether an order should be made under the CHROA had to be seen in the light of the objects contained in s 40 of the MHFPA. Three of those objects are concerned with the care and rehabilitation of the persons who are forensic patients at the time of the application. Counsel contrasted offending by high risk offenders with person who suffer a mental illness through no fault of their own. Under the MHFPA she submitted that a protective jurisdiction is involved. In that way there needs to be a fundamental moderation of the test of unacceptable risk which takes account of the deprivation of liberty by the making of an extension order. 3. I do not consider that a different approach is warranted. The first of the objects in s 40 is to protect the safety of members of the public. In the present case the Defendant is a forensic patient by virtue of an order made under s 24. That means that he is a person upon whom a limiting term has been imposed because a Court has determined he committed the index offences. For the purpose of determining whether he poses an unacceptable risk of causing harm to others, he is relevantly in no different position from a high risk offender where it is necessary to determine whether he poses an unacceptable risk of committing a serious sex or violence offence. The Court of Criminal Appeal has said in a number of cases such as R v Engert (1995) 84 A Crim R 67 at 68 that where general deterrence is of less importance, perhaps because of mental infirmity, that matter may make protection of society of greater importance. That is part of the basis for my conclusion in McGuire at [10]-[13]. 4. Furthermore, I consider that the approach of the Court of Appeal in Lynn should also be applied to the first limb of cl 2 of Sch 1 of the MHFPA because of the similarity of the wording of paragraph (a) with ss 5B(2) and 5E(2) of the CHROA. 5. To a large extent, the concerns expressed by Counsel for the Defendant are dealt with by consideration of the second limb of cl 2 of Sch 1 of the MHFPA. That is the further requirement which must be found before an extension order is made, namely, that the risk cannot be adequately managed by other less restrictive means. This might be thought to be an analogous provision to what is contained in s 5D and s 5G of the CHROA. That is because under the MHFPA the Court is not required to determine whether the order made is one for detention or supervision. If the Court makes an extension order the Defendant remains a forensic patient and it is for the Mental Health Review Tribunal to determine what flows from that order. However, the Court may find that the Defendant is an unacceptable risk but that the risk can be adequately managed by other less restrictive means. Counsel for the Defendant intimated that such a submission would be made in opposing an extension order at the final hearing. 6. In Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 Garling J said of the requirement in cl 2(1)(b) 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. The evidence in the present case shows that the Defendant has a long criminal record including a number of offences involving sex with young children: * On 11 May 1980 he was convicted in the Newcastle District Court for indecent assault of an eight year old girl. * On 21 May 1998 he was convicted of common assault and assault with an act of indecency involving four girls aged between five and eleven years. * On 15 October 2002 he was convicted of homosexual intercourse with a male aged between ten and 18 years (three counts), being a party to gross indecency with a male under 18 and indecent assault. The victim was his nephew who alleged he had been sexually abused by the Defendant for many years from the age of four. 1. Following those convictions he became a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). He has been convicted three times in 2009 of failing to comply with those reporting obligations. For two of those offences he was sentenced to a period of imprisonment. 2. A number of other sexual allegations have been made against him that did not result in charges. 3. A report has been prepared by a psychologist, Mr Samuel Ardasinski on 24 June 2016. He is a senior psychologist with the Serious Offenders Assessment Unit. Mr Ardasinski's conclusions included the following. He said that the Defendant's intellectual disability is likely to have the effect of making socialisation in the "adult world" more difficult, and the Defendant has formed an emotional identification with children due to his feeling more "at their level" cognitively and emotionally. Mr Ardasinski noted that the Defendant has maintained a denial of his sexual offending throughout his current period in custody. Mr Ardasinski said that this denial would make it difficult for the Defendant to be engaged in appropriate interventions. 4. Mr Ardasinski noted the assessments that had been made of the Defendant under various protocols. The Level of Service Inventory – Revised is an actuarial risk instrument consisting of both static and dynamic risk factors related to general offending but it omits numerous risk factors specific to violence and sexual violence. On that protocol his risk/needs were found to be within the medium risk range. On the Static-99R his score placed him in the high risk category. In the assessment under the Risk for Sexual Violence Protocol he was considered to be at high risk of committing further sexual violence. 5. Mr Ardasinski said that the Defendant's cognitive functioning fell in the moderate to mild range of intellectual disability. The Defendant had difficulty understanding abstract concepts, conceptualising future or hypothetical situations and evaluating costs and benefits of decisions. 6. Mr Ardasinski concluded that the risk assessment tools all suggested that the Defendant poses a high risk of repeat sexual violence. Mr Ardisinski believed that this high risk rating accurately reflected the Defendant's risk to the community. He said that he believed the Defendant needed ongoing management as a forensic patient at the current time. He said the risk of his causing serious harm to others could not be adequately managed by other less restrictive means at the time of Mr Ardasinski's report. 7. Ms Laura Durkin, a clinical and forensic psychologist, prepared a report dated 13 February 2017 specifically for the purpose of assessing his risk in the light of the release application that is currently before the Mental Health Review Tribunal. Ms Durkin had previously prepared a report for the Tribunal after interviewing and conducting psychometric testing on the Defendant in July 2016. 8. It is not necessary to detail or summarise Ms Durkin's conclusions. It is sufficient to say that her opinion supports Mr Ardasinski's conclusions that the Defendant poses a high risk of reoffending. One of the particular purposes of Ms Durkin's report was to consider a proposed plan that would be put into place on the Defendant's release. It is sufficient to say that her conclusions in that regard lend support to Mr Ardasinski's conclusion that his risk of offending could not at this stage be adequately managed by less restrictive means than his remaining as a forensic patient. 9. Nothing has been put forward at this stage, at least, to suggest that the high risk identified can be managed by a less restrictive means than extending the Defendant's status as a forensic patient. 10. On the basis of the evidence referred to, particularly the reports of Mr Ardasinski and Ms Durkin, I was satisfied to a high degree of probability that the Defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient and that the risk could not be adequately managed by other less restrictive means. 11. Accordingly, and without any opposition to an interim extension order, I made the following orders: 1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"): a. The Court appoints two registered psychologists to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations by 5:00pm on 21 April 2017. b. The Defendant is directed to attend those examinations. 2. Pursuant to clauses 10 and 11 of Schedule 1 of the Act that an interim extension order be made by the Court for a period of 28 days from 4 March 2017. 3. The plaintiff to serve any affidavits on which it relies by 5:00 pm on 5 May 2017. 4. The plaintiff to file and serve submissions on which it relies by 5:00 pm on 9 May 2017. 5. The defendant to serve any affidavits on which he relies by 5:00 pm on 16 May 2017. 6. The defendant to file and serve submissions on which he relies by 5:00 pm on 18 May 2017. 7. The matter be listed for final hearing on 22 May 2017 at 10:00 am with an estimate of 1 day. 8. Stand the matter over to 10am on Tuesday 28 March 2017 to hear an application before a duty judge to renew the interim extension order for a further 28 days. 9. Liberty to apply to relist the matter on one days' notice. ********** 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: 03 March 2017