Supreme Court New South Wales Medium Neutral Citation: Attorney General for New South Wales v Kapeen [2017] NSWSC 420 Hearing dates: 5 April 2017 Date of orders: 05 April 2017 Decision date: 05 April 2017 Jurisdiction: Common Law Before: Hamill J Decision: Make an interim extension order pursuant to clauses 10 and 11 of Schedule 1 to Mental Health (Forensic Provisions) Act 1990 for a period of 28 days from 9 April 2017. Catchwords: CIVIL – Mental Health (Forensic Provisions) Act – forensic patient – where limiting term expired – where defendant continues to have psychiatric illness – where final hearing imminent – order not opposed – no question of principle Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Attorney General for New South Wales v Kapeen (2017) NSWSC 226. Minister for Health v Paciocco (2016) NSWSC 1530 Category: Procedural and other rulings Parties: Attorney General of New South Wales (Plaintiff) Robert Steven Kapeen (Defendant) Representation: Counsel: Ms S Callan (Plaintiff) Mr E Ozen (Defendant) Solicitors: Crown Solicitors Office Legal Aid NSW File Number(s): 2017/00064522 EX TEMPORE Judgment 1. At around 7:45pm on 12 September 2014 Robert Steven Kapeen, who I will refer to as "the defendant", was arrested and charged with an offence that allegedly occurred a couple of hours earlier. It is alleged that at around 4:30 or 5pm that afternoon, he sexually assaulted a six year old child. The allegation was that he approached the child who was walking with his eight year old brother and removed the child's pants. He then removed his own pants and lay on the ground, causing the child to straddle him. It is alleged that the defendant had penile-anal sexual intercourse with the child for several minutes. 2. A female witness came upon the scene and observed that the child was facing the accused whilst sitting on his crotch. The witness yelled out and the defendant jumped up. The witness observed that his penis was erect. The defendant ran off. DNA evidence was subsequently obtained which connected the defendant to the underpants worn by the child. The witness reported the incident to the child's parents, who in turn reported the incident to the defendant's brother. The child's parents contacted the police and the defendant's brother arranged for the defendant to attend the local police station. It seems that the various parties were known to each other. They all live in the same small community in northern New South Wales. The defendant was charged with the offence and the criminal process began. 3. The facts sheet created by the police at the time of the arrest and, in the hours following, as well as the criminal history, demonstrate that the defendant was known to the police and that he admitted suffering from schizophrenia. The facts sheet also provides an opinion that he appeared to have some kind of learning disorder as well. 4. The matter came before her Honour Judge Yehia in the District Court sitting in Coffs Harbour on Monday 26 October 2015. Her Honour found that the defendant was not fit to be tried. [1] There was no application for bail. Her Honour directed the Registry to provide copies of the relevant reports to the Mental Health Review Tribunal. 5. On 30 November 2016 there was a special hearing before Judge Bennett in the District Court sitting at Grafton. [2] His Honour reached a verdict pursuant to s 22(1)(c) that "on the limited evidence available, the accused committed the offence charged". That was an offence of aggravated indecent assault. On 1 December 2016 Judge Bennett made a determination under s 23 of the Act that if the defendant had been tried in the normal way, he would have been subject to a term of imprisonment. His Honour set a "limiting term" of two years and six months commencing 13 September 2014 and expiring 12 March 2017. In accordance with s 24 of the Act, Judge Bennett referred the defendant to the Mental Health Review Tribunal. Since that time the defendant has been a "forensic patient". 6. The limiting term was due to expire, or did expire, on 12 March 2017. By summons filed 1 March 2017 the Attorney General for New South Wales sought a number of orders, including the appointment of experts to examine the defendant and extension orders under s 54A and Schedule 1 of the Act. The matter came before His Honour Justice Beech-Jones on 9 March 2017. [3] His Honour made orders appointing experts to furnish reports to the Court for the final hearing of the matter and made an interim extension order for a period of 28 days from 12 March 2017. That last order extended the period under which the defendant would be, and would remain, a forensic patient. 7. The Attorney General seeks a two year extension of the order and the matter is listed for final hearing on 24 April 2017. In the meantime, the interim extension order made by Beech-Jones J will expire on 9 April 2017. The matter is before me today on the Attorney General's application to make a further interim extension order that will mean that the defendant's status as a forensic patient will be extended at least until the final hearing of the matter on 24 April 2017. 8. Beech-Jones J explained the operation of the relevant provisions in his earlier judgment in this case and also in a case known as Minister for Health v Paciocco [2016] NSWSC 1530. His Honour also discussed the differences between an order under the Act and orders concerning involuntary patients under the Mental Health Act. It is unnecessary to go into any detail, other than to note that the decision is governed by the operation of clause 10 in Schedule 1 of the Act. 9. I am required to determine whether the supporting documentation would, if proved, justify the making of an extension order. That determination requires me to consider the circumstances in which the Court may make an extension order. Those are set out in clause 2, which is in the following terms: 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. 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. Clause 7 sets out a number of criteria which might guide the Court in coming to the decisions required under clause 2: 7 Determination of application for extension order (1) The Supreme Court may determine an application under this Part 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 clause 6 (5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (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 Family and Community Services 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 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 in accordance with section 49 or 50), (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. Two affidavits have been read by the Attorney General in the hearing today. The order – according to an email dated 3 April 2017 at 2:28pm from a Mr David Norman, solicitor of the Mental Health Advocacy Service with the Legal Aid Commission of New South Wales – is not opposed. In fact it is consented to. Nevertheless, the Act requires me to be satisfied of the matters set out in clause 10 of Schedule 1 and by reference to clauses 2 and 7, which are the matters guiding the outcome of the final hearing. 2. I have considered a volume of material in those affidavits and particularly the contents of an exhibit referred to as KAS 1, which includes a number of psychiatric reports. These establish on their face, and if proved, that the accused has schizophrenia and residual symptoms of psychosis and remains, or at least remained in January of this year, unfit to be tried. He remains a "significant risk of harm to himself" and, at least in the opinion of one psychiatrist, a moderate risk of committing further sexual offences. The evidence on its face is also capable of establishing that there is no less restrictive placement available for him. 3. The defendant's criminal history before 2014 did not include any offences of violence or any sexual offences and it is no doubt arguable on the final hearing that the evidence does not justify the defendant's continued detention as a forensic patient. However, the making of an interim order does not require me, or for that matter permit me, to come to any final conclusions as to the matters in clause 2, based on the criteria in clause 7 subclause (2). 4. For the purpose of the present application, I must assume the matters asserted in the documentation will be proved. On that basis, I am satisfied that the limiting term has expired and that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order; that is, the material, if proved, may establish that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means. 5. Accordingly, and by consent, I make the orders in the short minutes of order helpfully provided by those appearing for the plaintiff. Pursuant to clauses 10 and 11 of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990, I make an interim extension order for a period of 28 days from 9 April 2017. ********** Endnotes 1. See ss 10- 14 of the Mental Health (Forensic Provisions) Act 1990, which I will refer to as "the Act", and R v Presser [1958] VR 45. 2. See ss 19-21 of the Act. 3. See Attorney General for New South Wales v Kapeen [2017] NSWSC 226. Amendments 18 April 2017 - Typographical error amended 18 April 2017 - Typographical error amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2017