Attorney-General of New South Wales v McGuire

1. [1]

   By a summons filed on 30 May 2017 the Attorney-General of New South Wales (“the plaintiff”) seeks an order pursuant to Clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) that Herbert Robert McGuire (“the defendant”) be subject to an extension order for a period of one year from the date of the order.

2. [2]

   The plaintiff relied on the following affidavits which were read without objection:

3. [3]

   In addition, the plaintiff tendered the following exhibits:

4. [4]

   The defendant read the following affidavits without objection:

THE DEFENDANT’S APPLICATION FOR A NON-PUBLICATION ORDER

1. [5]

   At the commencement of the hearing, counsel for the defendant sought an order prohibiting the publication of the defendant’s name. That order was sought pursuant to s. 162 of the Mental Health Act 2007 (NSW) (“the MHA”) or, in the alternative, pursuant to s. 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the CSNPO Act”).

2. [6]

   The plaintiff did not consent to such an order being made. It was the plaintiff’s position that s. 162 of the MHA did not apply and that whilst the CSNPO Act clearly did, there was no proper basis for the making of such an order. It was submitted, in particular, that in light of the publication of previous judgments of this Court in which the defendant’s full name was disclosed, there would be no utility in making the order which was sought.

3. [7]

   Having heard submissions, I refused the application and indicated to the parties that I would incorporate the reasons for that decision in my final judgment. Those reasons now follow.

4. [8]

   It is apparent that different views have been taken by Judges of this court in relation to the question of whether or not s. 162 of the MHA has any application in circumstances such as the present. It is also apparent that in some cases where orders have been made pursuant to that section, those Judges who have made them (including myself) have not had the benefit of full argument in relation to the relevant provisions: see for example NSW Minister for Mental Health v BB [2015] NSWSC 1418; Attorney-General of New South Wales v TP [2015] NSWSC 1656.

5. [9]

   The plaintiff did not take issue with the proposition that the CSNPO Act does apply to this application. Section 8 of that Act is in the following terms:

6. [10]

   It has been observed that the term “necessary” as it appears it in s. 8(1)(a) is not satisfied merely because the order is convenient, reasonable or sensible: Attorney-General of New South Wales v Huckstadt (No.2) [2017] NSWSC 595 per Adamson J at [49]. Her Honour went on to observe (at [53]) that applications for non-publication orders have been refused on the grounds of futility because the information which is sought to be restrained is already in the public domain. Her Honour concluded by saying:

7. [11]

   In the present case four judgments of Judges of this court have already been published disclosing the name of the defendant, namely:

8. [12]

   In the circumstances of the present case, the order sought would serve no purpose and it is not necessary. It was for these reasons that I refused the application when it was made.

BACKGROUND TO THE APPLICATION

1. [13]

   The background to the application is helpfully set out in the written submissions filed by the plaintiff. It is not in dispute and may be conveniently summarised as follows.

2. [14]

   The defendant is currently 44 years of age. He has not been diagnosed as suffering a psychiatric illness although he has, at times, displayed symptoms consistent with such illness. He has an intellectual disability and an alcohol use disorder.

3. [15]

   On 4 September 2009, the defendant appeared before her Honour Judge Murrell SC (as her Honour then was) in the District Court of NSW in respect of three offences alleging sexual intercourse without consent (“the index offences”). It was alleged that on 4 April 2006 he had been drinking alcohol with friends at premises which were adjacent to the residence of the victim, who herself suffered an intellectual disability. It was alleged that when the defendant observed the victim, he went to her residence and asked if he could come in for a drink. He spoke of “wanting to be with (the victim) and wanting to be (her) friend”. The victim refused to allow him to come in. When the defendant followed the victim’s daughter into the house, the victim asked him to leave. The defendant refused. The victim then walked to the front of the house in an attempt to have the defendant come outside. The victim went inside the house to obtain the key to lock the front door, during which time the defendant entered the house and committed a series of sexual assaults upon her.

4. [16]

   The first count in the indictment alleged forced penile/vaginal intercourse that extended between five to fifteen minutes and caused the victim to feel pain. It was alleged that the victim struggled and managed to hit the defendant over the head with a telephone but that he continued. The second count alleged forced penile/anal intercourse that continued for five to ten minutes. The third count alleged forced penile/vaginal intercourse. After words were exchanged, the defendant left the house saying that he would “come back next week to finish the job”. The offending was witnessed by the victim’s 5 year old daughter.

5. [17]

   Her Honour found that on the limited evidence available, the defendant had committed the three offences charged in the indictment. Her Honour also found that the defendant was intoxicated at the time but was nevertheless well aware of what he was doing.

6. [18]

   Her Honour found that the defendant’s moral culpability was substantially reduced on account of his intellectual disability and his developmental delay. She also found that the disinhibiting effect of alcohol would have further reduced his capacity to make rational decisions, and that the offending was not planned.

7. [19]

   In respect of each of counts one and three, which alleged forced penile/vaginal intercourse, her Honour imposed concurrent limiting terms of 4 years commencing on 1 January 2009 and expiring on 31 December 2012. In respect of count two, which alleged force penile/anal intercourse, her Honour imposed a limiting term of 4 years (partially concurrent and partially cumulative) commencing on 1 January 2010 and expiring on 31 December 2013.

8. [20]

   The effective total limiting term imposed by her Honour was one of 5 years, commencing on 1 January 2009 and expiring on 31 December 2013. Her Honour referred the matter to the Mental Health Review Tribunal (“the MHRT”) and ordered that the defendant be detained in Long Bay Hospital or such other place as the MHRT might determine.

9. [21]

   On 26 August 2013, the defendant was conditionally released into the community by order of the MHRT. That order obliged him to comply with a number of conditions which have continued, in large measure, up until the present time, including to:

10. [22]

    On 29 November 2016, the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) made an order under the Guardianship Act 1987 (NSW) (“the Guardianship Act”) appointing the Public Guardian as the guardian of the defendant for a period of 12 months. Pursuant to that order, it is the function of the guardian to (inter alia):

AN OVERVIEW OF THE RESPECTIVE CASES

1. [23]

   The evidence tends to establish that over a period of time there has been a reduction in the defendant’s assessed risk. However, it is the plaintiff’s position that this is a result of the regime imposed upon him as a continuing forensic patient under the monitoring of the MHRT. As a forensic patient he is required to take anti-libidinal and anti-alcohol medication, and accept the support of CJP and others. It is the plaintiff’s position that anti-libidinal medication represents a central component of managing the defendant’s risk. Counsel for the plaintiff submitted that the evidence tends to establish that if the defendant was not compelled to take that medication by the MHRT, he would cease to do so. It is the plaintiff’s position that there is no indication that NCAT would make such an order under the Guardianship Act and that accordingly there continues to be an unacceptable risk of the defendant causing serious harm to others if he ceases to be a forensic patient, and that such risk cannot be adequately managed by less restrictive options.

2. [24]

   Counsel for the defendant frankly conceded that the evidence before the court was capable of establishing that the defendant continues to be an unacceptable risk of causing harm to others, and that such risk cannot be adequately managed by less restrictive options. It was the defendant’s position that if I were to come to that view following an independent assessment of the evidence, any order should not be of a duration in excess of one year.

The legislative regime

1. [25]

   Pursuant to s. 54A of the Act, this court is empowered to make an order extending a person’s status as a forensic patient in accordance with Schedule 1. Section 54A is contained within Part 5 of the Act, the objects of which are set out in s. 40 as follows:

THE TEST

1. [26]

   Clause 2 of Schedule 1 imposes a two limb test for the making of an extension order in the following terms:

2. [27]

   The plaintiff bears the onus in respect of both limbs and, in respect of the second, must prove the negative: Minister for Health v Paciocco [2017] NSWSC 4 at [8].

3. [28]

   In order to make the order sought, I must be satisfied to a high degree of probability in respect of both limbs. The expression “a high degree of probability” indicates something beyond more probable than not: Cornwall v Attorney-General of New South Wales [2007] NSWCA 374 at [21]. It is higher than the civil standard but lower than the criminal standard: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [17] citing Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605 (at [27]). The phrase “unacceptable risk” is to be given its ordinary everyday meaning: Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636; Attorney-General for the State of New South Wales v Boyce [2017] NSWSC 144.

4. [29]

   If I am satisfied to the requisite standard that the defendant poses an unacceptable risk and if I am also satisfied, to the same standard, that the risk cannot be adequately managed by other less restrictive means, then I may make an extension order. In the present case a potentially less restrictive means is a guardianship order pursuant to the Guardianship Act.

Relevant considerations

1. [30]

   Clause 7(2) of the Act sets out a number of matters to which I must have regard in determining whether to make an extension order. However, these considerations, although mandatory, are not exclusive. It remains open to me to take into account any other matter that I consider relevant. The mandatory considerations set out in clause 7(2) are as follows:

2. [31]

   To the extent that they are relevant to the present application, I turn to consider these factors. In doing so, I note that the matters in clause 7(2)(b)-(i) necessarily bear on a consideration of the safety of the community referred to in clause 7(2)(a).

The safety of the community – clause 7(2)(a)

1. [32]

   I have already set out the nature and circumstances of the index offences. However, it is necessary to emphasise that the defendant’s criminal history is not limited to those matters, and includes driving offences, as well as offences of dishonesty and violence. As to the latter, his history includes convictions for assault, possessing a prohibited weapon and damaging property. The defendant has also been convicted for inflicting grievous bodily harm on a police officer.

Any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient – clause 7(2)(d)

1. [33]

   There are a number of medical reports contained in the evidence. The opinions of the experts who have provided those reports may be summarised as follows:

Dr Ellis

1. [34]

   Dr Ellis is a forensic psychiatrist. He has diagnosed the defendant with an intellectual disability, an alcohol use disorder, anti-social and paranoid personality traits, possible psychotic experiences and problem gambling. In a report of 18 May 2016 Dr Ellis stated:

2. [35]

   It was Dr Ellis’ view that in the absence of a structured framework, it was unlikely that the defendant would continue accessing the support or treatment services which would be available to him. Dr Ellis also thought that anti-libidinal medication was still required in the medium term, along with ongoing review by a psychiatrist.

3. [36]

   Most recently, Dr Ellis provided a report of 14 November 2017 for the court’s assistance. In that report, he explained that any risk management strategy works in conjunction with other strategies. He then stated:

4. [37]

   Having made references to the prescription of anti-libidinal and anti-alcohol medication, Dr Ellis stated:

5. [38]

   Dr Ellis noted that in the event that cessation of medication was accompanied by a reduction or cessation in clinical support and monitoring, the risk posed by the defendant would be significant. In particular, he thought that there would be an increased likelihood of the defendant engaging in impulsive decision making, the use of substances and association with marginal peer groups. He thought that in that event, the defendant’s risk profile would return to being closer to what it was when he committed the index offences. He also though that with no professional monitoring, these risk factors could lead to serious harm.

Professor Hayes

1. [39]

   Professor Hayes provided a number of reports in relation to the defendant between 2014 and 2016. The essence of her opinion was that the defendant posed a moderate risk of causing serious harm to others. She thought that his risk may increase if he ceased to be a forensic patient, and that the combination of risk factors and withdrawal of support would increase his likelihood of re-offending.

Dr Eagle

1. [40]

   Dr Eagle concluded that the defendant was at moderate risk of sexual and violent re-offending, and thought that such risk had been properly managed by the interventions which were the subject of the current order. She expressed some concern at the likelihood that the defendant would not comply with (inter alia) his medication regime in the absence of an order. This was based on statements made by the defendant to her in the course of assessment.

2. [41]

   Dr Eagle regarded the anti-libidinal and anti-alcohol medication as important, if not essential, components of the defendant’s ongoing management and treatment. She took the view that there was insufficient information to confirm a diagnosis of psychotic illness, but concluded that the defendant was a moderate risk. She thought that such risk was currently managed adequately pursuant to the terms of the order which is in place. Significantly, she expressed the view that if the present order were to lapse, it would likely lead to the defendant disengaging from the professional services which were currently available to him. She thought that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient, because he would not, in those circumstances, have adequate monitoring and support.

3. [42]

   Most recently, Dr Eagle provided a report dated 5 October 2017. The following passages encapsulate her opinion:

Patrick Sheehan

1. [43]

   Mr Sheehan is a forensic psychologist who provided a report dated 30 September 2017. He did not consider the defendant to be mentally ill and expressed the view that he posed a low to moderate risk of re-offending. Consistent with the opinions expressed by Dr Eagle, Mr Sheehan thought that the defendant’s risk may escalate if he rejected supervision and support, was unable to occupy himself, fell out with his family or reacted impulsively to stressors and consumed alcohol.

2. [44]

   Mr Sheehan provided a further report for the court dated 30 September 2017. In that report Mr Sheehan stated (inter alia) as follows:

3. [45]

   Finally, Mr Sheehan went on to say:

THE ORAL EVIDENCE OF DR EAGLE AND MR SHEEHAN

1. [46]

   Dr Eagle and Mr Sheehan gave concurrent oral evidence before me in the course of the hearing. Dr Eagle confirmed her view (commencing at T7.1) that the defendant posed a moderate level of risk and that in the event that the current extension order were to lapse, it was likely that the defendant would disengage from professional services and would stop taking prescribed medications including anti-libidinal medication. In particular, Dr Eagle said (commencing at T7.20):

2. [47]

   Notwithstanding those concluding comments, Dr Eagle confirmed what she saw as the importance of anti-libidinal medication and the part that it played in the defendant’s current treatment regime. She said (commencing at T8.24):

3. [48]

   Dr Eagle also agreed (commencing at T8.45) that the anti-libidinal and anti-alcohol craving medications complemented each other, and that it was difficult to separate them.

4. [49]

   She confirmed (commencing at T9.1) that the effect of the anti-libidinal medication could not be properly ascertained until such time that it has been ceased but said that in her view, it was better to cease both medications under supervision. This, she thought, was the most sensible risk management strategy in all of the circumstances.

5. [50]

   Dr Eagle said (commencing at T9.15) that on the basis of what the defendant had said to her, she did not believe that he would continue with his anti-alcohol medication voluntarily. It was her belief (at T9.37-T9.38) that the defendant would prefer not take any medication at all.

6. [51]

   Mr Sheehan agreed that any cessation of anti-libidinal medication should be under supervision (at T10.20-T10.29). He confirmed his view (commencing at T11.4) that the defendant posed a low to moderate risk of re-offending. When asked whether he thought that the risk of the defendant of re-offending would be increased in the absence of the current protective influences, Mr Sheehan said (commencing at T11.23):

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) – clause 7(2)(g)

1. [52]

   The defendant was released into the community, subject to a number of conditions, on 26 August 2013. The conditions on which he was released have been summarised at [21] above.

2. [53]

   On 8 January 2016 an order was made by the MHRT for the defendant’s apprehension as a consequence of him breaching his conditional release order. Those breaches included him being absent from his accommodation without permission. The defendant subsequently remained an inpatient at Nepean Hospital between 9 January 2016 and 8 April 2016. There were various reviews carried out by the MHRT between January 2016 and May 2016, following which the MHRT released the defendant back in the community on the basis that appropriate treatment could be provided to him. At a review on 30 May 2016 following his release, it was noted that the defendant was managing well, and that there had been no additional concerns.

3. [54]

   Whilst there are other documented instances of inappropriate behaviour, generally speaking the evidence supports a conclusion that the defendant has been relatively stable in recent times, and is progressing adequately.

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 – clause 7(2)(h)

1. [55]

   I have already made reference (at [17]-[18]) to some of the observations made by the judge who imposed the limiting term. Proceedings against the defendant have been the subject of a number of previous judgments by this court.

2. [56]

   On 21 March 2014 Garling J extended the defendant’s status as a forensic patient by 12 months, to 21 March 2015: Attorney-General of New South Wales v McGuire (No.2) [2014] NSWSC 288. At [157] his Honour said:

3. [57]

   Later at [184] his Honour said:

4. [58]

   His Honour also concluded (at [196]) that a period of 12 months was the minimum time necessary to enable the defendant to commence and progress along the path of reducing his unacceptable risk.

5. [59]

   On 28 May 2015, Rothman J made orders extending the defendant’s status as a forensic patient for 12 months until 10 June 2016: Attorney-General of New South Wales v McGuire [2016] NSWSC 158. His Honour said commencing at [63]:

6. [60]

   On 24 August 2016 Campbell J made an extension order for a period of 12 months expiring on 23 August 2017: Attorney-General of New South Wales v HRM [2016] NSWSC 1189. His Honour concluded that the defendant remained in a category of moderate to high risk of re-offending. Whilst his Honour acknowledged the availability of a less restrictive regime, he thought it unsuitable in the circumstances (at [21]):

Less restrictive means – guardianship application and orders

1. [61]

   The defendant’s sister was originally appointed as his guardian but that order has since been varied to a public guardian to make decisions about the defendant’s accommodation and services. I have noted at [22] above that on 29 November 2016 NCAT made a guardianship order appointing the public guardian as the guardian of the defendant for a period of 12 months.

Submissions of the plaintiff

1. [62]

   Counsel for the plaintiff submitted that I would be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient. Counsel placed particular emphasis on the defendant’s criminal history, his intellectual disability, his alcohol use disorder, his anti-social personality disorder and his paranoid personality traits. In these respects, as well as in others, counsel relied, in particular, on the opinions of Dr Ellis, Dr Eagle and Mr Sheehan.

2. [63]

   It was submitted that when viewed as a whole, the expert evidence supported a conclusion that the defendant continued to pose at least a moderate risk which would escalate if the current support available to the defendant was removed.

3. [64]

   Counsel for the plaintiff also pointed to the fact that there was evidence of:

4. [65]

   Counsel further submitted that the fact that the defendant had not caused harm to others since his release in 2013 was explained by the fact that he had been part of a structured environment and had received extensive supervision and support within that period of time. In these circumstances, it was submitted that I would be satisfied that the defendant continued to pose an unacceptable risk of causing serious harm to others, for the reasons most recently articulated by Campbell J.

5. [66]

   In terms of the second limb of the test, counsel for the plaintiff submitted that the most relevant issue arose from the fact that the defendant had not been assessed as suffering from a mental illness or a mental disorder. It was pointed out that in these circumstances, there would be no basis for the MHRT to classify the defendant pursuant to s. 53 of the MHA (as an involuntary patient) and that there was no similar basis for him to be transferred to what was described as the “civil mental health scheme”.

6. [67]

   It was submitted that of those avenues which remained, the most relevant was a guardianship order. However, in this regard, counsel pointed to the important differences between the powers of the MHRT (in the event that the defendant remained a forensic patient) and the powers of a guardian and the guardianship division of NCAT. Most importantly, counsel pointed out that a guardian would not be required to conduct regular reviews of the defendant’s condition, or regular reviews of the level of his risk of harm to others. Equally importantly, counsel explained that there was, at least at the present, no measure in place pursuant to the Guardianship Act to compel the defendant to take anti-libidinal medication. It was submitted that this was of particular significance in light of the oral evidence before me given by Dr Eagle and Dr Ellis.

Submissions of the defendant

1. [68]

   As I have previously noted, it was accepted by counsel for the defendant that it would be open to me to conclude that both limbs of the test had been met. However, it was counsel’s submission that if I were so satisfied, I should not make an order for a period exceeding 12 months.

2. [69]

   In these respects, counsel noted that it was now more than 11 years since the index offences occurred, the initial limiting term having expired on 31 December 2013. It was also pointed out that for the majority of the period which had elapsed since that time (save for the period in which he was detained at Nepean Hospital) the defendant had been living predominately in the community, generally without incident.

3. [70]

   Counsel also emphasised that on the evidence, the defendant had not been diagnosed with any psychiatric condition at any time. She submitted that the breaches in 2016 were, in the scheme of things, of a relatively minor nature.

Consideration

1. [71]

   In my view, the weight of the medical evidence is overwhelmingly in support of the conclusion that the defendant continues to pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. On the whole of the evidence, that risk, in my view, is a moderate one.

2. [72]

   I accept that the breaches in 2016 were, in relative terms, towards the lower end of the scale. However, they nonetheless demonstrate that the defendant, as a number of the experts have pointed out, continues to be in need of a structured and supervised program in which his adherence to a regime of anti-libidinal and anti-alcohol craving medication can be properly monitored. Bearing in mind the opinions of Dr Ellis, I am not satisfied that the defendant would otherwise adhere to that regime.

3. [73]

   I accept that the index offences occurred a number of years ago. However, two observations may be made about that circumstance. Firstly, as I have pointed out, those offences do not constitute the entirety of the defendant’s criminal history. That history includes violent offending. Secondly, as a matter of common sense, it is reasonable to conclude that the absence of any significant offending since that time has been because of the structured regime which has been put in place. It is of particular significance that Dr Eagle, as well as Mr Sheehan, thought that the importance of ongoing monitoring of the defendant’s regime of medication was best addressed by the making of an extension order.

4. [74]

   In terms of the second limb of the test, in my view, the most significant factor is that the defendant has never been diagnosed as suffering from any mental illness. Whilst there have been passing references to his having exhibited symptoms of such illness (notably in the opinions of Dr O’Dea) the fact remains that at no stage has the defendant been so diagnosed. As counsel for the plaintiff pointed out, that necessarily limits the options in terms of his effective management.

5. [75]

   I am satisfied to the requisite standard that at present there is no other less restrictive means by which the defendant can be managed. There are a number of reasons for that. They include, perhaps most importantly, the fact that there is no obligation upon a guardian to review the defendant’s ongoing adherence to medication. Moreover, a guardian cannot compel, or in my view satisfactorily monitor, the defendant’s adherence to anti-libidinal and anti-alcohol craving medication.

6. [76]

   I am satisfied, on the evidence, that if left to his own devices, there is a real risk that the defendant would not continue to take that medication. In the light of the evidence of Dr Eagle in particular, the importance of its continuation is self-evident. The evidence also establishes that what is equally important is that if the medication is to be ceased at any time, it is best carried out under strict supervision. Clearly on Dr Eagle’s evidence, the defendant’s regime of medication forms an important, if not critical, part of his ongoing management. Those circumstances, without more, satisfy me to the requisite standard, that the identified risk cannot be managed by any less restrictive means.

ORDER

1. [77]

   For the foregoing reasons I make the following orders:

   1. (1)

      Pursuant to clause 1 of Schedule 1 of the Mental Health Forensic Provisions Act 1990 (NSW), the defendant is subject to an extension order for a period of one year from today.

   2. (2)

      I direct the Registrar, pursuant to Clause 7(3) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), to notify the Mental Health Review Tribunal of Order (1).