Attorney General for NSW v Vakapora (Final)

1. [1]

   HIS HONOUR: The Attorney General of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 11 November 2020 against the defendant, Tutaua Vakapora, seeking interim and final orders extending the defendant’s status as a forensic patient, pursuant to s 54A and Sch 1 (“the Schedule”) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”). The defendant was a forensic patient subject to a limiting term that expired on 27 January 2021.

2. [2]

   The summons sought orders that two psychiatrists, psychologists and/or registered practitioners (or any combination of such persons) be appointed to separately examine the defendant and furnish reports to the Court, that he be ordered to attend the examinations, and that he be subject to an interim extension order (“IEO”) commencing on 27 January 2021. By way of final relief, the summons sought an order extending the defendant’s status as a forensic patient (“an extension order”) for a period of 5 years and, finally, an order that access only be granted to the Court’s file to a non-party with leave of a judge of this Court and with prior notice to the parties and an opportunity for them to be heard.

3. [3]

   The defendant responded to the application by his court-appointed tutor, Dr Katherine Johnson. A three-month IEO was ordered by Davies J on 3 December 2020, to commence on 27 January 2021 and which will expire on 26 April 2021: Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701 (“the preliminary judgment”). The defendant did not oppose an IEO, but without prejudice to him to argue at the final hearing that an extension order should not be made. The defendant has been an inpatient in the Forensic Hospital at Malabar since 29 September 2020. He is presently in the Bronte Ward, which is an acute secure psychiatric inpatient ward.

4. [4]

   Pursuant to the orders for the provision of forensic reports, two psychiatric reports have been tendered by the plaintiff, being reports of Dr Yolisha Singh and Dr Sathish Dayalan, dated 1 February 2021 and 29 January 2021 respectively.

5. [5]

   I note that the defence submitted that, if the Court is satisfied to the requisite standard of the statutory test for determining that an extension order should be made, the duration should be for 2 to 3 years, rather than for 5 years.

The background to the plaintiff’s application

1. [6]

   The defendant is noted to be a poor historian, no doubt due to his mental health afflictions, so a degree of reservation is appropriate as to the detail of his background that is dependent upon his account. The picture that emerges from his accounts in various reports is essentially to the following effect. The defendant is a 30 year old man who was born on Rarotonga, one of the Cook Islands. He is the eldest of five children. He was separated from his parents at age 12 to live with his maternal grandfather on another island, because they could not afford to care for him. He was often physically disciplined as a child by his father and maternal grandfather. He left school in the equivalent year of Year 7 and found work in carpentry as a labourer.

2. [7]

   The defendant’s family migrated to Sydney when he was aged 17. He worked in construction for two months and then, for between six and 18 months, erected marquees at The Rocks. He has not worked since. He has a son aged around 11 or 12 years, who he has not seen since his birth. Until the defendant went into custody, he was in receipt of a Disability Support Pension.

3. [8]

   The defendant regularly smoked cannabis from around the age of 12 to 14 years and, by the age of 17, was using approximately 2g per day. He started drinking Kava at age 14. He would binge-drink Kava for approximately “three days straight” and then not drink for the rest of the week. He started drinking alcohol at the age of 17 and took ice from the age of 24, using it at least once a week and usually in a binge pattern, staying awake “all day all night for three days”. He snorted buprenorphine between the ages of 24 and 26, varying between once a week to once a month.

4. [9]

   In her report, Dr Singh reviewed the defendant’s psychiatric history. It is so interwoven with his criminal history, and provides context for it, that it makes sense to consider them together.

5. [10]

   The defendant’s first offence was “drive while under the influence of alcohol or other drugs”, committed when he was aged 18, for which on 13 January 2010 he received a 6 months’ licence suspension and a 12 month good behaviour bond.

6. [11]

   On 28 June 2011, when aged 20, the defendant was dealt with in the Local Court for “intimidate with intent to cause fear of physical harm”, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), as well as “stalk/intimidate” and “assault occasioning actual bodily harm”. The police facts were to the effect that at about 11:15pm on 25 January 2011, the defendant was sitting on the porch of the family residence with his father, playing music on his DVD player, loudly. A neighbour asked that they turn it down, and the defendant’s father asked the defendant to do so. The defendant responded “fuck you”. The defendant’s father then picked up some items and, in doing so, knocked the DVD player (I note the defendant has since claimed that his father was drunk and angry, and had deliberately smashed the player).

7. [12]

   The police facts continue to the effect that the defendant threatened to “smash” his father and swore at him. His father went inside and later came back outside. The defendant repeatedly punched him, causing him to fall. The defendant’s mother and his 17 year old sister pulled the defendant away from his father, who went inside and phoned police. The defendant walked away and appeared at a friend’s residence, carrying a length of mountain climbing rope, saying he was going to end his life. The friend called police, who, with the assistance of a dog squad, found the defendant hanging from a tree by a rope around his neck, his body being well off the ground. Police held his body up as he was cut down.

8. [13]

   The defendant was conveyed to Liverpool Hospital, where he was made an involuntary patient (“scheduled”) pursuant to a mental health certificate issued under s 19(1) of the Mental Health Act 2007 (NSW) in terms set out in Pt 1 of Sch 1 of that Act. The defendant was discharged four days later to a community mental health service but did not attend for follow-up.

9. [14]

   The police facts also stated that the defendant’s mother had made arrangements with her sister in New Zealand to pay the airfare for the defendant to go to New Zealand and spend time with his extended family. His mother informed police that she believed the defendant had an underlying mental health problem and that she knew he was using cannabis.

10. [15]

    On 13 April 2011, the defendant was admitted to the intensive psychiatric care unit (“IPCU”) at Concord Hospital pursuant to the Mental Health Act, following “bizarre behaviour” at a train station. He was treated for a psychotic episode from cannabis abuse.

11. [16]

    On 28 June 2011, the charges against the defendant were dismissed pursuant to s 33 of the Act, conditional upon him being discharged from Cumberland Hospital into the care of his family in New Zealand.

12. [17]

    The defendant arrived in New Zealand in mid-July 2011 and resided with his grandparents. He remained psychotic and continued to smoke cannabis despite compliance with intra-muscular antipsychotic medication (Risperidone).

13. [18]

    In around November 2012, the defendant returned to Australia and became non-compliant with his antipsychotic medication. His behaviour again became bizarre. At one point, his family reported that he was walking around the house carrying a knife saying: “they are telling me to kill someone”.

14. [19]

    On 16 January 2013, the defendant cut off his left index finger with a knife. Despite seven weeks of treatment, his mental state was not much improved and he posed management problems, with aggression and sexually inappropriate behaviour towards female patients and nursing staff, including masturbating in a public area.

15. [20]

    On 27 February 2013, when aged 22, the defendant received fines in the Local Court following convictions for “make/furnish a statement which is false/misleading” and “receive/dispose stolen property”.

16. [21]

    On 12 March 2013, the defendant was again admitted to Concord Hospital IPCU. He was released on a Community Treatment Order (“CTO”) but was readmitted as an involuntary patient to Campbelltown Hospital on 25 June 2013 and 20 November 2013.

17. [22]

    On 14 April 2015, when aged 24, the defendant received a fine for “possess prohibited drug”. Five weeks later, he received a fine for a further conviction of “possess prohibited drug”.

18. [23]

    On 1 December 2015, when the defendant was aged 25, he allegedly repeatedly punched one of his sisters and pushed his mother, whilst the three of them were standing on a street. The defendant’s sister phoned police, who located the defendant three days later at a railway station, apparently affected by alcohol and/or drugs. The defendant stated that he had consumed one litre of whisky and had smoked “a couple of cones of cannabis”. The defendant’s sister was apparently pregnant at the time, although the defendant claimed to Dr Dayalan that he was unaware of that fact.

19. [24]

    On arrest, the defendant was admitted to Campbelltown Hospital and transferred to Concord Hospital IPCU. Dr Singh reported:

20. [25]

    The defendant appeared in the Local Court on 10 December 2015 on three charges of “common assault in a domestic violence context” and a charge of “fail to appear”. The charges were dealt with pursuant to s 33(1)(a) of the Act, and he was taken to hospital for assessment.

21. [26]

    Three months later, on 16 March 2016, when still aged 25, the defendant appeared before the Local Court on a charge of common assault. The incident occurred on 11 September 2015, thus predating the earlier charges involving his sister and mother by about three months. The police facts were as follows:

22. [27]

    The magistrate proceeded by way of s 33(1)(b) of the Act, requiring that the defendant be detained in a mental health facility for assessment.

23. [28]

    Following an incident on 1 August 2016, when the defendant was aged 26, he was charged with “recklessly inflict grievous bodily harm” contrary to s 35(2) of the Crimes Act 1900 (NSW), alternatively “assault occasioning actual bodily harm” contrary to s 59 of the Crimes Act, and “stalk/intimidate”. The facts are set out in a judgment of English DCJ, in which a limiting term was imposed, that was handed down on 10 December 2019:

24. [29]

    The defendant was admitted into the Mental Health Screening Unit (“the MHSU”) at the Metropolitan Remand and Reception Centre (“the MRRC”) at Silverwater. He was assessed by Dr Spencer on 12 September 2016, who described him as displaying symptoms of mental illness.

25. [30]

    On 21 March 2017, the charges were dealt with in the Local Court by way of s 33(1)(a) of the Act, with the defendant being entered to Concord Hospital for assessment. He presented with psychotic symptoms and remained there until 30 March 2017, after which he was returned to custody at the MHSU. On 10 August 2017, the defendant was taken to Campbelltown Hospital on a schedule from Court. There were problems with him influencing other patients, bringing contraband onto the ward, and returning from leave intoxicated. He was sent to the High Dependency Unit at Liverpool Hospital, and discharged on 3 November 2017 to stay with a friend with follow-up on a CTO.

26. [31]

    On 26 April 2018, the defendant was arrested for a breach of bail conditions. The next day he was taken to Campbelltown Hospital pursuant to s 33 of the Act. He remained in hospital until 7 June 2018 when he was discharged into police custody following periods of increased aggression and the use of illicit substances whilst on leave. The following day he was readmitted into prison.

27. [32]

    The Director of Public Prosecutions determined to proceed by way of an ex-officio indictment. On 25 June 2018, English DCJ found the defendant unfit to be tried in relation to the three charges.

28. [33]

    On 27 August 2018, the Mental Health Review Tribunal (“the Tribunal”) determined that the defendant was not likely to become fit for trial within 12 months.

29. [34]

    On 1 August 2019, the defendant’s bail was revoked and he was brought back into custody.

30. [35]

    On 10 December 2019, English DCJ held a Special Hearing, pursuant to s 19 of the Act. Her Honour delivered judgment on 4 November 2019, noting that none of the witnesses whose statements had been tendered had been required for cross-examination and therefore the prosecution case was unchallenged. The defendant did not give evidence, although his electronically-recorded interview by police, which was conducted shortly after the incident, was tendered into evidence. The defendant had admitted bashing the victim, and it was submitted on his behalf that the victim’s injuries did not constitute grievous bodily harm. Her Honour found that the injuries did constitute “really serious” (grievous) bodily harm.

31. [36]

    Her Honour entered qualified findings of guilt against the defendant in relation to the charges of “recklessly inflict grievous bodily harm” and “stalk/intimidate”. The first charge had a maximum penalty of 10 years and a standard non-parole period of 4 years. Her Honour nominated a limiting term of 2 years and 6 months, to commence on 24 July 2018, concluding on 27 January 2021. In relation to the second charge, which had a maximum penalty of 5 years, her Honour nominated a limiting term of 3 months, with the same commencement date.

32. [37]

    On 27 April 2018, the defendant appeared in the Local Court charged with contravening an Apprehended Violence Order (“AVO”). The Court proceeded by way of s 33(1)(b) of the Act. The defendant was alleged to have gone to the residence of the victim of the index offences, where he was found lying in the rear yard of the unit complex. He was not alleged to have done anything untoward, and when asked what he was doing, he explained that he was “just chilling out”.

33. [38]

    Whilst in prison, the defendant has received the following punishments. On 27 December 2016, he was detained in his cell for three days for “assaults”, apparently on an officer. On 23 August 2019, he was ordered to pay $300 compensation for “‘damage destroy or deface cell”. On 28 August 2019, he was taken off buy-ups for “fight or other physical combat”. On 6 October 2019, he received a reprimand and caution for “[fail] to comply with the corrective centre routine”. On 16 January 2020, he received a reprimand and caution for “intimidation”.

34. [39]

    Dr Singh examined the defendant on or around 16 January 2021. She diagnosed the defendant as having a schizoaffective disorder, which she described as a chronic and severe neurological brain disorder:

35. [40]

    Dr Singh considered, and rejected, a diagnosis of adolescent onset conduct disorder, which is a pre-requisite to making a diagnosis of antisocial personality disorder. She continued:

36. [41]

    Dr Singh noted in her report that when she examined the defendant in the forensic hospital:

Relevant statutory provisions

1. [42]

   The defendant became a forensic patient when he received a limiting term: ss 24 and 42(a)(i) of the Act; and remains a forensic patient because he is subject to an IEO: s 42(a1) of the Act. Section 54A, which is in Pt 5 of the Act, provides that a person’s status as a forensic patient may be extended in accordance with the Schedule.

2. [43]

   Clause 1 of the Schedule requires the application to extend a person’s status as a forensic patient to be made under Pt 2 of the Schedule, which sets out time constraints and other compliance requirements for an application, and identifies certain material that must accompany it: cls 4, 5 and 6(1)–(4). The defendant does not contest that the plaintiff has complied with these requirements and I find that they are satisfied.

3. [44]

   The Court may determine an application by either making the order or by dismissing the application: cl 7(1). The Court may make a second or subsequent extension order against the same forensic patient: cl 8(2). The making of an extension order does not affect the operation of “any order as to the forensic patient’s care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order”: cl 9.

4. [45]

   The title of Pt 5 of the Act is “Forensic patients and correctional patients”. The objects of Pt 5 are set out in s 40, as follows:

5. [46]

   The plaintiff submits that ss 40(a), (b), (e) and (f) of the Act are relevant to a determination of the application.

6. [47]

   The central provision of the Schedule as to the criteria for determining an application is found in cl 2:

Relevant principles

1. [48]

   In Attorney General of New South Wales v WB (Final) [2020] NSWSC 152, I considered the operation of cl 2, as follows:

2. [49]

   In this case, as will be seen in my consideration below, an alternative to the defendant being classified as a “forensic patient” pursuant to the Act is that he be classified as an “involuntary patient” pursuant to the Mental Health Act. It is therefore necessary to note the following as to the meaning of “adequately managed” and “less restrictive means”.

3. [50]

   In Attorney-General of NSW v McGuire (No. 2) [2014] NSWSC 288, Garling J said:

4. [51]

   In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107; [2016] NSWSC 107, Adamson J said, at [96]:

Clause 7(2) matters

1. [52]

   Clause 7(2) of the Schedule sets out a non-exclusive list of matters that the Court must have regard to when deciding whether to make an extension order. These matters are now separately considered.

2. [53]

   Although differently drafted, this is essentially the same consideration as expressed in s 40(a) of the Act: “to protect the safety of members of the public”.

3. [54]

   In their reports, the two forensic psychiatrists reviewed the same material, in similar terms and came to similar diagnoses, with perhaps the exception that Dr Dayalan considered that the defendant may have a cognitive deficit.

4. [55]

   Dr Singh utilised the Historical Clinical Risk Management-20 Version 3 (“HCR-20 V3”), which she described as:

5. [56]

   Dr Singh identified several prominent historical risk factors for future violence on the part of the defendant. These included a history of violence and other antisocial behaviour primarily related to drug use, a history of serious problems establishing and maintaining stable personal relationships including relationships with his father and aggression towards his mother and a sister and difficulties with employment and education. Dr Singh also said:

6. [57]

   Dr Singh assessed the defendant’s protective factors by utilising the Structured Assessment of Protective Factors for Violence Risk 2nd Edition (“SAPROF”), which she described as:

7. [58]

   Dr Singh concluded that the defendant had a paucity of protective factors:

8. [59]

   Dr Singh was asked to comment on the extent to which each psychiatric condition affects the defendant’s risk of causing serious harm to others. She responded:

9. [60]

   In response to a question as to whether the defendant poses a risk of causing serious harm to others if he ceases to be a forensic patient, Dr Singh said:

10. [61]

    Dr Singh expressed the opinion that the defendant’s risk of violence is likely to remain high in the short to medium term which requires management in a high secure forensic facility, although he may be suitable for transfer to a non-forensic facility in the future if his illness is stabilised. Dr Singh noted that the defendant comes within the definition of a mentally ill person as defined in the Mental Health Act, so the Tribunal could reclassify him as an involuntary patient under that Act. He would continue to receive the same level of care in the Forensic Hospital, with either classification. However, there were additional protections in the defendant continuing with the forensic patient classification. His record of failed CTOs suggests that a reclassification, which may result in further CTOs, would not adequately manage his risk. Dr Singh said:

11. [62]

    Dr Singh was of the view that an appropriate period for the defendant’s forensic status to be extended is for a period of 3 to 4 years, noting:

12. [63]

    Dr Dayalan considered that the defendant’s history and presentation was suggestive of a diagnosis of schizoaffective disorder, with a differential diagnosis being schizophrenia. The defendant’s history of substance abuse supported a diagnosis of alcohol, cannabis and stimulant use disorder that are currently in remission in a controlled environment. In relation to conduct disorder, Dr Daylan said:

13. [64]

    As to the possibility of intellectual impairment, Dr Dayalan said:

14. [65]

    Later in Dr Dayalan’s report, he said: “A formal neuropsychometric assessment is required before confirming or ruling out the diagnosis of intellectual disability”.

15. [66]

    Dr Dayalan also utilised the HCR-20 V3 and arrived at a similar conclusion to Dr Singh, finding:

16. [67]

    Dr Dayalan made similar observations to those of Dr Singh as to the comparative features of the defendant remaining a forensic patient, as opposed to being made an involuntary patient under the Mental Health Act and, for similar reasons, favoured him remaining a forensic patient.

17. [68]

    As to the preferred length of an extension order, Dr Dayalan said:

18. [69]

    Dr Singh and Dr Dayalan gave evidence jointly in a “hot-tub” fashion at the hearing of this matter. The effect of their evidence was that, consistently with their opinions expressed in their reports, they differed as to the timeframe within which the stabilising of the defendant’s mental illness may progress to a point of him being safely returned to the community, and the reasons for that, and the utility of maintaining the defendant’s status as an involuntary patient beyond that point.

19. [70]

    Both forensic psychiatrists envisaged the defendant’s treatment progressing to a point that he would initially re-enter the community through a Medium Secure Unit (“MSU”). Whereas Dr Dayalan thought that it was unlikely that the defendant would be transitioned to the community within three to four years, Dr Singh thought two to three years was realistic. They agreed that a period beyond that point during which the defendant would remain a forensic patient was appropriate. Dr Singh thought that a period of one year after the defendant is returned to the community in which he would remain a forensic patient “does not seem unreasonable”.

20. [71]

    Dr Singh considered it likely that a shorter period would be required in the Forensic Hospital than that envisaged by Dr Dayalan, because there were no reported instances of the defendant being violent to other persons, and while there were instances of him being generally aggressive, such as punching walls, “he was able to self regulate with the support of the Multi-Disciplinary Team, within a reasonable time frame”. Dr Singh also noted that the defendant had experienced difficulty submitting to mental health care, and the shortest possible period of him being a forensic patient would assist his relationship with his mental health care providers.

21. [72]

    Dr Singh and Dr Dayalan agreed that, while the defendant remained in the Forensic Hospital, there was little difference in the quality of care he received, whether he was a forensic patient or involuntary patient. The benefit of the defendant being a forensic patient for a period once he is returned to the community is that he would have oversight by the “specialty network”, which was explained by Dr Singh as follows:

22. [73]

    In relation to the absence of any assessment of the defendant’s cognitive functioning, Dr Singh explained that it would be difficult to undertake clinical testing until such time as his psychosis is controlled.

23. [74]

    In support of the plaintiff’s summons, a report was commissioned from Dr Jeremy O’Dea, forensic psychiatrist. His report is dated 27 October 2020. He interviewed the defendant on 28 September 2020, at which time the defendant was still at the MRRC. Based on his clinical assessment on that date and the documents made available to him, Dr O’Dea diagnosed the defendant as having a severe chronic treatment resistant schizophrenic illness, complicated by a significant and ongoing substance use disorder. Dr O’Dea elaborated as follows:

24. [75]

    Dr O’Dea made observations similar to those of Dr Singh and Dr Dayalan as to the different features of the classifications of forensic patient and an involuntary patient, expressing a preference for the former, in view of the defendant’s past behaviour when resident in the community, including his poor compliance with CTOs.

25. [76]

    There are no other reports that have been prepared expressly for the purpose of the plaintiff’s application, although there are numerous reports that have been prepared over the years for the Tribunal. The plaintiff tendered two such psychiatric reports that were prepared for the Tribunal, by Dr Andrew White, dated 17 July 2020, and Dr Reece Anderson, dated 13 October 2020.

26. [77]

    Dr White’s opinion as to the appropriate diagnosis of the defendant’s mental condition was:

27. [78]

    Dr White recommended that the defendant be admitted:

28. [79]

    Dr Anderson is the defendant’s treating psychiatrist in the Bronte unit of the Forensic Hospital. Dr Anderson’s diagnosis of the defendant was in similar terms to that of Dr White, as follows:

29. [80]

    Section 46(1) of the Act provides:

30. [81]

    The Tribunal has reviewed the defendant three times since the imposition of the limiting term. On 15 April 2020, the Tribunal made an order pursuant to the Act that the defendant be detained for care and treatment in the Forensic Hospital as soon as a bed became available, and in the meantime, that he be detained at the MRRC for care and treatment. On 6 August 2020, the Tribunal made no further order in relation to the defendant’s care, treatment and detention, noting that the existing order remained in effect.

31. [82]

    The Tribunal’s most recent review of the defendant was on 12 November 2020. It determined that the defendant suffered from a severe and persistent mental illness which has been variously diagnosed as schizophrenia or a schizoaffective disorder and that the defendant remained unfit to be tried.

32. [83]

    The plaintiff has tendered a selected bundle of documents produced by the Department of Corrective Services (NSW), Justice Health and Concord Hospital relating to the care and treatment provided to the defendant in the course of his various admissions to those hospitals and into prison. The relevant entries in these documents were canvassed in the tendered reports of the forensic psychiatrists.

33. [84]

    As noted earlier, the defendant has breached AVO and bail conditions and has been the subject of disciplinary actions whilst detained in prison.

34. [85]

    English DCJ found that, in terms of the objective seriousness of the offence of recklessly causing grievous bodily harm, although it was spontaneous and no weapon was used, it was prolonged, starting with punches to the face and head and ending with the defendant kicking the victim to the head. The victim was vulnerable by virtue of his age, 61 years, and disabilities that he was suffering at the time.

35. [86]

    I take into account the evidence of Dr Singh and Dr Dayalan at the hearing.

The submissions of the parties

1. [87]

   The focus of the parties in their submissions was on the appropriate length of an extension order.

2. [88]

   The plaintiff submitted that Dr Singh and Dr Dayalan were agreed on the stages through which the defendant must progress before he is released into the community, but Dr Singh’s evidence as to the likely timeframe for the defendant to progress in his treatment to a point when he would be released to the community was “rather aspirational”, her best-case scenario still involving the defendant not being released from a MSU until three and a half years’ time.

3. [89]

   The defendant did not concede that he poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient on 26 April 2021, but equally, does not oppose that finding being made, if the Court is satisfied by the evidence before it to the requisite standard.

4. [90]

   The defendant opposed an extension order of the length sought by the plaintiff, submitting that an extension order of no more than three years is the least restrictive period necessary to manage his risk.

Consideration

1. [91]

   The defendant has a history of established violent acts that are intertwined with his history of mental illness and use of prohibited drugs, in a causative way. Thus far, he has been largely unresponsive to drug and counselling therapy, although since he has been a patient in the Forensic Hospital, by virtue of the greater resources available for his treatment and care, he is finally likely to make progress. For the reasons expressed by Dr Singh and Dr Dayalan, the test at cl 2(1)(a) of Sch 1 of the Act is satisfied to the requisite degree. Namely, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient on 26 April 2021.

2. [92]

   The next phase of the determination of the matter is to consider whether the risk cannot be adequately managed by other less restrictive means; in the context of this case, by the defendant being classified as an involuntary patient pursuant to the Mental Health Act. The immediate answer to that question is “yes”, since the evidence is to the effect that the care the defendant receives in the Forensic Hospital would essentially be the same regardless of his status as a forensic patient or an involuntary patient, and since being an involuntary patient is “less restrictive”.

3. [93]

   However, in my view, it is appropriate for the Court to respond to that question in a more nuanced way, taking into account not only the comparative treatment and care that is immediately available, but whether the risk can be “adequately managed” as the defendant progresses through the successive stages of his treatment, to eventual release and beyond. From that perspective, the repeated failures of the defendant to understand the need to not take prohibited drugs and to attend for community-based mental health treatment and otherwise comply with CTOs, with the attendant risk to the community of serious harm, satisfies me to a high degree of probability that the risk cannot be adequately managed by other less restrictive means until such time as the defendant has resided in the community for six to 12 months in compliance with the Tribunal’s conditions and directives.

4. [94]

   An order must be expressed in temporal terms rather than in terms of stages of treatment. The evidence as to when that stage will be reached varies between “three to four years” to “five years”. I am of the view that an extension order for period of four years is appropriate, because it recognises what in my opinion is a reasonable minimum period of time for the defendant to progress to the point of successfully residing in the community. If in the plaintiff’s view a further period is required, a further application is possible under the legislative scheme of the Act.

Orders

1. [95]

   I make the following orders: