Attorney-General of New South Wales v Kereopa

1. [1]

   The Attorney-General makes 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. [2]

   The Defendant was charged with 21 separate offences committed in January 2014 as follows:

3. [3]

   Counts 4 and 5 carry maximum penalties of 20 years imprisonment. Counts 2 and 6 carry maximum penalties of 5 years imprisonment and counts 3, 9 and 10-24 inclusive carry maximum penalties of 10 years imprisonment.

4. [4]

   On 7 November 2014 Judge Jeffreys found that the Defendant was unfit to be tried on the charges.

5. [5]

   A special hearing was conducted by his Honour Judge Hoy SC who found on 2 September 2015 that the Defendant was guilty of all of those offences on the limited evidence available. On 10 September 2015 his Honour imposed an overall limiting term of three years and three months commencing 24 January 2014 and concluding 23 April 2017. For some of the offences he was placed on s 9 bonds for a four year period to expire on 9 September 2019. These bonds contained a condition that the Defendant accept the supervision and guidance of Community Corrections in a large number of areas specifically identified for his needs.

6. [6]

   It is in the circumstances of the imminent expiry of the limiting term 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.

Legal principles

1. [7]

   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.

2. [8]

   The test for making an extension order is set out in cl 2 of Sch 1 as follows:

3. [9]

   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.

4. [10]

   In Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 I said:

5. [11]

   Counsel for the Defendant submitted that any reliance on principles arising out of decisions concerning the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA) should be undertaken cautiously. Since persons who are subject to limiting terms are able to have their terms extended when they are not high risk offenders, the regime under the MHFPA has a far wider reach.

6. [12]

   I accept that the regime under the MHFPA has a far wider reach but, on one level, that is a matter that tells against the Defendant. The unacceptable risk under the CHROA is committing either a “serious sex offence” or a “serious violence offence” both of which are defined in that Act. In relation to “serious violence offence”, at a minimum grievous bodily harm is required.

7. [13]

   Counsel suggested that it was for that reason that caution was required. The offending making up the index offences could well be less serious than for high risk offenders and the unacceptable risk being guarded against could well be less because it is simply “serious harm” and not the commission of a serious violence offence or a serious sex offence. That was why in Attorney General of New South Wales v McGuire [2013] NSWSC 1862 I said that the learning that has grown up in relation to the CHROA should be appropriately applied to Schedule 1 of the MHFPA. I agree that the net is cast wider for forensic patients and to that extent the caution suggested should be exercised.

8. [14]

   The unacceptable risk under the MHFPA is causing “serious harm to others”. What authority there is on these undefined words tends to point to the inclusion of behaviour that would not extend nearly as far as the behaviour that constituted a serious sex offence or a serious violence offence. The matter is highlighted in the present case where the index offences did not involve personal violence.

9. [15]

   It does not appear that there is any authority on the meaning of the words in the context of the MHFPA. However, the expression is also used in s 14 of the Mental Health Act 2007 (NSW) and that section was considered by White J in Re J (No. 2) [2011] NSWSC 1224.

10. [16]

    Section 14 relevantly provides:

11. [17]

    There is no definition of the words “serious harm” in the Mental Health Act but it should be noted that s 15 of that Act, which deals with mentally disordered persons in similar terms to s 14 which deals with mentally ill persons, refers to “serious physical harm” of themselves or others.

12. [18]

    Justice White said:

13. [19]

    I accept that Re J must be treated carefully for a determination of the meaning of the term “serious harm” in the MHFPA because of its context in the Mental Health Act. However, there is no reason in principle why “serious harm” in the MHFPA would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of “serious violence offence” in the CHROA) is explained to juries as being “really serious injury”, a concept that must be on a higher plane than “serious harm”.

14. [20]

    The second limb in clause 2 of Schedule 1 requires the Court to be satisfied to a high degree of probability that the risk cannot be adequately managed by other less restrictive means. 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]:

Evidence

1. [21]

   Two psychiatrists who prepared reports for the Mental Health Review Tribunal hearing in December 2014, Dr Richard Furst and Dr Rosalie Wilcox both diagnosed schizophrenia, substance use disorder and found that the Defendant had an intellectual disability. Both psychiatrists noted a past diagnosis of Attention Deficit Hyperactivity Disorder.

2. [22]

   The Defendant was examined by Dr Kerri Eagle, a forensic psychiatric, on 23 January 2017. She prepared a report dated 5 February 2017 which reported on that consultation and her examination of a large amount of material that had been forwarded to her. On 13 March 2017 she provided a supplementary report after having been sent a number of further documents relating to prior offending by the Defendant.

3. [23]

   Dr Eagle diagnosed the Defendant as suffering from schizophrenia, an intellectual disability, a severe substance use disorder and she said that he had anti-social personality traits.

4. [24]

   Although, as I have said, the index offences did not involve personal violence some of the earlier offending by the Defendant had involved personal violence. Those offences were common assault, assault with intent to rob, assault law officer, assault officer in execution of duties and assault occasioning actual bodily harm. Dr Eagle noted that the Defendant appeared to have ongoing problems with insight into his violence risk. That conclusion appears to have stemmed partly, at least, from his statement to her that the worst offence he had committed had been the index offences and that he had not previously engaged in violence or fighting.

5. [25]

   In relation to the risk of violent re-offending Dr Eagle said:

6. [26]

   Dr Eagle noted the following matters:

7. [27]

   In relation to the risk he poses Dr Eagle said this:

8. [28]

   After reviewing the further material forwarded to her Dr Eagle provided this opinion in her second report:

9. [29]

   In relation to matters to be considered under the second limb, Dr Eagle noted the Defendant’s custodial position as follows:

10. [30]

    The records from Corrective Services show that the Defendant has had a large number of breaches whilst in custody including for assault where actual bodily harm was caused. Further, a report by a senior clinical consultant at the Community Justice Program in 2010 said that the Defendant had been moved to a CJP Intensive Residential Service where he was receiving 24 hour support. However, within three months he absconded from the house. It may be accepted that that event was some years ago but what Dr Eagle reported about his custodial history makes that relevant because it is but one in a number of incidents where anything but the closest supervision resulted in either absconding or further offending or both.

11. [31]

    Dr Eagle said in relation to methods of risk management:

12. [32]

    She concluded:

Determination

1. [33]

   Dr Eagle’s conclusions were not challenged at this hearing. I accept her conclusions concerning the assessment of the Defendant’s risk and how that can be managed.

2. [34]

   I have also had regard to a number of earlier psychological and psychiatric assessments of the Defendant. They support the conclusion that the Defendant’s mental and intellectual problems are of long-standing. Whilst he can be treated for the mental and substance abuse problems the diminished intellectual abilities will remain. Treatment of the schizophrenia and the substance abuse is largely dependent on the Defendant’s compliance but the intellectual problems may impinge on that compliance.

3. [35]

   There is in fact no present plan for managing the Defendant’s risk in any alternative manner to making an extension order. The possibilities are treatment as an involuntary patient under the Mental Health Act, a community treatment order or supervision under the s 9 bonds. I accept the Attorney’s submission that neither a Community Treatment Order nor reliance on the good behaviour bonds is likely to be adequate to ameliorate the risk the Defendant presents. I also accept the analysis of Adamson J in Attorney-General of New South Wales v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 of the difference between the position where a person is held as an involuntary patient and where a person is a forensic patient and her conclusions in that regard at [119] and [121]. A difficulty may well arise if the schizophrenia is adequately treated and controlled. In such circumstances the Defendant would not be held as an involuntary patient but the intellectual disability along with continued substance abuse would mean the risk was unmanaged.

4. [36]

   On the basis of all of this material but noting that it has not been challenged on this application for an interim order, I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means.

Non-publication

1. [37]

   The Defendant seeks that the Court make the following additional interim orders:

2. [38]

   It is said that the power to make such an orders is found in s 162 Mental Health Act 2007 (NSW) as well as the Court Suppression and Non-publication Orders Act 2010 (NSW). Section 162 of the Mental Health Act provides:

3. [39]

   The Defendant submitted that the material relied upon by the Attorney-General in these proceedings is material contemplated by s 162(c) of the Mental Health Act and that the operation of the section should extend to material contained in the affidavits sworn by the solicitor for the Plaintiff. That is partly because the affidavits refer to the Defendant’s juvenile criminal history, publication of which would be contrary to the Children (Criminal Proceedings) Act 1987 (NSW), and because the Defendant is a vulnerable person with a serious mental illness and an intellectual disability. It is submitted that publication of the affidavits would involve publication of the Defendant’s confidential medical records.

4. [40]

   A similar application was made to Campbell J in Minister for Mental Health v Paciocco [2017] NSWSC 4. In that case his Honour said:

5. [41]

   I agree with the analysis of Adamson J in Attorney-General of NSW v Doolan [2015] NSWSC 1773 at [60] – [68]. However, it does not appear that the point now being made by the Defendant was argued in those cases.

6. [42]

   The Defendant seeks to argue that even if s 162 has no application directly to the present proceedings, the protection accorded by s 162 will be rendered nugatory if the information annexed to and exhibited to the affidavits in the present proceedings is published because it identifies the Defendant. Whether s 162 provides protection to medical and other material which is before the Tribunal is something that needs to be argued at the final hearing in this matter. The power is available, however, under s 10 of the Court Suppression and Non-publication Orders Act to make an interim non-publication order without determining the merits of the application. I consider that it is appropriate to do so. The order is not opposed by the Attorney.

7. [43]

   The Defendant’s name is in the public arena already because of the judgments in the District Court. I can see no basis, therefore, for anonymising the Defendant in these proceedings at least at this stage of the proceedings.

Conclusion

1. [44]

   I make the following orders:

   1. (1)

      Non-publication order pursuant to s 7(a) and (b) of the Court Suppression and Non-publication Orders Act in respect of the information comprising the evidence given and to be given in the proceedings on the grounds set out in s 8(a), (c) and (e) of the Act until determination of the final hearing;

   2. (2)

      Pursuant to clause 6(5) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 the Court appoints one qualified psychiatrist and one qualified psychologist to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 5.00pm on 2 June 2017;

   3. (3)

      The Defendant is directed to attend the examinations referred to in Order 2;

   4. (4)

      Pursuant to clause 10 of Schedule 1 to the Act an interim extension order is made for a period of 28 days commencing on 23 April 2017;

   5. (5)

      Plaintiff to file and serve any affidavits and written submissions on which it relies by 5.00pm on 12 June 2017;

   6. (6)

      Defendant to file and serve any affidavits and written submissions on which he relies by 5.00pm on 26 June 2017;

   7. (7)

      Fix the proceedings for final hearing on 3 July 2017 with an estimate of one day.