State of New South Wales v Windle (No. 4) [2017] NSWSC 1155

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Windle (No. 4) [2017] NSWSC 1155 Hearing dates: 29 August 2017 Date of orders: 29 August 2017 Decision date: 06 September 2017 Jurisdiction: Common Law Before: Johnson J Decision: High risk violent offender continuing detention order concerning the Defendant made on 26 May 2017 revoked pursuant to s.19(1) Crimes (High Risk Offenders) Act 2006 from 9.00 am on 11 September 2017. Catchwords: HIGH RISK OFFENDER - application to revoke high risk violent offender continuing detention order (CDO) - Defendant detained in Long Bay Hospital under CDO - vacancy available for Defendant in Forensic Hospital - unanimous medical opinion that Defendant ought be treated in Forensic Hospital - order made to revoke CDO to permit transfer of Defendant under Mental Health At 2007 to Forensic Hospital Legislation Cited: Crimes (Administration of Sentences) Act 1999 Crimes (High Risk Offenders) Act 2006 Mental Health Act 2007 Cases Cited: State of New South Wales v Windle (No. 3) [2017] NSWSC 727 Texts Cited: --- Category: Principal judgment 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: This is the final judgment of the Court arising from an application by the Plaintiff, State of New South Wales, for orders under the Crimes (High Risk Offenders) Act 2006 with respect to the Defendant, Andrew Robert Windle. 2. On 29 August 2017, I made orders to which reference will be made shortly. This judgment contains my reasons for making orders on 29 August 2017. 3. The somewhat unusual history of this application may be found in State of New South Wales v Windle (No. 3) [2017] NSWSC 727, a judgment delivered on 8 June 2017. For reasons explained in that judgment, the Court ordered on 26 May 2017 that: 1. subject to any earlier revocation order made by the Court, the Defendant be subject to a high risk violent offender continuing detention order ("CDO") for a period of eight months from 26 May 2017; 2. the Defendant be subject to a high risk violent offender extended supervision order for a period of six months commencing immediately upon the expiration of the CDO referred to at (a) above or its earlier revocation by the Court. 1. As at 26 May 2017, the Defendant was detained in the Long Bay Hospital (a correctional centre). The prospect that the CDO might be revoked arose in the event that a bed may become available for the Defendant in the Forensic Hospital (which is not a correctional centre). A fuller explanation of the legal and factual circumstances giving rise to the Court's decision may be found in State of New South Wales v Windle (No. 3) at [129]-[156]. 2. In accordance with the arrangements outlined in that judgment, the solicitor for the Plaintiff informed the Court that a bed had become available for the Defendant in the Forensic Hospital. Accordingly, by Notice of Motion filed on 28 August 2017, the Plaintiff sought that the CDO made on 26 May 2017 be revoked from 9.00 am on 11 September 2017. 3. On 29 August 2017, the Notice of Motion proceeded to hearing before me. An affidavit of Jonathan Vasiliou sworn 28 August 2017 was read in support of the application. Both Ms Wright, counsel for the Plaintiff, and Mr White, counsel for the Defendant, asked the Court to make orders as sought by the Plaintiff. 4. Accordingly, on 29 August 2017, I made orders to the following effect: "That the high risk violent offender continuing detention order made on 26 May 2017 under s. 17(l)(b) of the Crimes (High Risk Offenders) Act 2006 is revoked pursuant to s. 19(1) of that Act from 9:00 am on 11 September 2017. In so ordering, the Court notes the order made on 26 May 2017 for a high risk violent offender extended supervision order of six months' duration to commence immediately upon expiry of the high risk violent offender continuing detention order, and its suspension during any term of involuntary detention under the Mental Health Act 2007 by operation of s. 10(1A) and (2) of the Crimes (High Risk Offenders) Act 2006." 1. The evidence before the Court revealed that Dr Adrian Keller, the Clinical Director of the Forensic and Long Bay Hospitals, had informed the solicitor for the Plaintiff that a bed had become available for the Defendant in the Forensic Hospital. Dr Keller requested that a date be selected for the purpose of the necessary transfers to be undertaken and 11 September 2017 was nominated for this purpose. That date is most suitable to staff at the Forensic Hospital. Practical arrangements are also underway for members of the New South Wales Police Force to escort the Defendant from the Long Bay Hospital to the Mental Health Unit at the Prince of Wales Hospital so that he may be there assessed and (as expected) made the subject of an order under the Mental Health Act 2007 which will facilitate his admission to the Forensic Hospital that same day (see State of New South Wales v Windle (No. 3) at [148]-[155]). 2. It was for these reasons that the order made on 29 August 2017 was expressed to operate from 9.00 am on 11 September 2017. 3. Given the uncertainty surrounding the date when a bed may become available for the Defendant at the Forensic Hospital as expressed in my judgment of 8 June 2017, it is gratifying that the opportunity for transfer of the Defendant to the Forensic Hospital has occurred as promptly as it has. The Court is sure that this could not have been achieved without the full co-operation and assistance of Dr Keller and the staff at the Forensic Hospital, and the Forensic Patient Flow Committee and the Forensic Hospital Admissions Committee (see State of New South Wales v Windle (No. 3) at [141]-[142], [187]-[188]). The Court is most grateful to Dr Keller and the relevant Committees for their assistance in this regard. 4. The sentence of imprisonment imposed upon the Defendant expired on 28 February 2017. His detention since then under the Crimes (High Risk Offenders) Act 2006 has facilitated his psychiatric treatment which will operate to further protect the community, both now and in the future. 5. As explained in State of New South Wales v Windle (No. 3), the optimal location for the Defendant's treatment and care at this time is in the Forensic Hospital where he will receive specialised treatment and assistance. The Forensic Hospital is the most secure mental health facility in New South Wales. The fact that he will be transferred from a mental health unit in a correctional centre to the Forensic Hospital so promptly operates in the interests of both the community and the Defendant. 6. As explained in State of New South Wales v Windle (No. 3) at [177]-[186], the high risk violent offender extended supervision order will be suspended whilst the Defendant is in lawful custody under any statue or other law, including his detention as an involuntary patient in a mental health facility under the Mental Health Act 2007 or escorted day leave from any such facility, at least in circumstances where the Defendant's freedom is directly controlled or limited. 7. The high risk violent offender extended supervision order is intended to facilitate the process of the Defendant's transition from custody in a mental health facility to life in the community, when that point is reached, having regard to the need for his treatment and care. The Court was satisfied that an order of this type was necessary to ensure the safety and protection of the community and to encourage the Defendant to continue to undertake rehabilitation: s.3 Crimes (High Risk Offenders) Act 2006. 8. It was for these reasons that I made orders on 29 August 2017 as set out at [7] above. 9. In the same way as with State of New South Wales v Windle (No. 3) at [188]-[189], I will take steps to ensure that a copy of this judgment is provided directly to Dr Keller and to the Mental Health Review Tribunal.