Attorney General for New South Wales v McGuire by his tutor Thompson

1. [1]

   By an amended summons dated 25 January 2019, the Attorney General seeks an order pursuant to cl 1 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act), that the defendant’s status as a forensic patient be extended for a period of 2½ years from the date of the order.

2. [2]

   The defendant, by his tutor, opposes the making of any extension order.

3. [3]

   For the reasons set out below, I have decided to make an extension order for a period of 2½ years.

Background to the present application

1. [4]

   On 17 August 2006, the defendant was charged with three offences contrary to s 61I of the Crimes Act 1900 (NSW), namely, that he had sexual intercourse with a person without consent knowing that the person did not consent (the Index Offences), and with one offence of aggravated break, enter and commit serious indictable offence, contrary to s 112 of the Crimes Act.

2. [5]

   On 25 August 2008, following an enquiry under s 12 of the MHFP Act, Garling DCJ determined that the defendant was not fit to be tried, on the basis that he suffered from an intellectual disability. The defendant was referred to the Mental Health Review Tribunal (MHRT) and was remanded in custody.

3. [6]

   On 4 September 2009, following a special hearing under s 21 of the MHFP Act, Murrell DCJ (as her Honour then was) held, on the limited evidence available, that the defendant committed the Index Offences. Her Honour permanently stayed the aggravated break, enter and commit serious indictable offence charge, on the ground that the conduct to which it related was the same as that of the s 61I charges and, accordingly, was an abuse of process.

4. [7]

   Murrell DCJ imposed an overall effective limiting term of 5 years in respect of the Index Offences. This term expired on 31 December 2013. Her Honour also ordered the defendant be referred to the MHRT and that he remain in custody. Thereafter, the defendant was detained in a correctional facility and became a forensic patient under s 42 of the MHFP Act.

5. [8]

   On 26 August 2013, the defendant was released by the Tribunal into the community, subject to a comprehensive set of conditions, under s 47(1)(b) of the MHFP Act.

6. [9]

   As a result of the limiting term imposed by Murrell DCJ, the defendant’s status as a forensic patient under the MHFP Act would have expired on 31 December 2013. This did not occur because this Court made interim extension orders, as permitted under cl 10 of Sch 1 to the MHFP Act, so that the defendant’s status as a forensic patient would not expire until 24 March 2014.

7. [10]

   On 21 March 2014, Garling J made an order, under cl 1 of Sch 1 of the MHFP Act, extending the defendant’s status as a forensic patient for a year until 21 March 2015: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 (McGuire (No.2)).

8. [11]

   After further interim orders, extension orders were made as follows:

   1. (1)

      On 28 May 2015, Rothman J ordered that the defendant’s status as a forensic patient be extended to 10 June 2016: Attorney General of New South Wales v McGuire [2016] NSWSC 158;

   2. (2)

      On 24 August 2016, Campbell J made an order further extending the period during which the defendant had the status of a forensic patient to 23 August 2017: Attorney General of NSW v HRM [2016] NSWSC 1189; and

   3. (3)

      On 23 November 2017, Bellew J ordered that the defendant be subject to an extension order for a period of one year expiring on 22 November 2018: Attorney-General of New South Wales v McGuire [2017] NSWSC 1572.

9. [12]

   By a summons filed on 12 November 2018, the Attorney General sought an order for the examination of the defendant, under cl 6(5) of Sch 1 of the MHFP Act, and interim extension orders, as well as a final order that the defendant be subject to an extension order for a period of one year. The order under cl 6(5) and an interim extension order were made by Button J on 21 November 2018: Attorney General of NSW v McGuire [2018] NSWSC 1795. Further interim orders have been made so that the defendant is to continue as a forensic patient until 14 February 2019.

10. [13]

    In accordance with the cl 6(5) order made by Button J:

    1. (1)

       the defendant was examined by Dr Kerri Eagle, a forensic psychiatrist, on 12 December 2018, and Dr Eagle provided a report dated 21 January 2019;

    2. (2)

       the defendant was examined by Ms Jenny Howell, a forensic psychologist, on 15 January 2019, and Ms Howell provided a report dated 21 January 2019.

11. [14]

    The application for a final order under cl 1 of Sch 1 to the MHFP Act came on for hearing on 7 February 2019. The Attorney General was granted leave to file an amended summons to seek an order for the extension of the defendant’s status as a forensic patient for 2½ years.

Relevant Statutory Provisions

1. [15]

   The care, treatment and control of forensic patients, among others, are dealt with in Pt 5 of the MHFP Act.

2. [16]

   A “forensic patient” is relevantly defined in s 42 of that Act as follows:

3. [17]

   The defendant is a forensic patient in that he was originally the subject of an order under s 24 of the MHFP Act and he is now a person in respect of whom an interim extension order is in force.

4. [18]

   The objects of Pt 5 are set out in s 40 in the following terms:

5. [19]

   Section 54A, which is found in Pt 5 of the MHFP Act, provides that “[a] person’s status as a forensic patient may be extended in accordance with Schedule 1.” This is what the Attorney General seeks in this matter.

6. [20]

   The following clauses of Sch 1 of the MHFP Act are relevant for present purposes:

7. [21]

   Even if an extension order is made, it is not final in the sense that it can be revoked or varied at any time, under cl 12 of Sch 1 of the MHFP Act. That clause provides:

Relevant Principles

1. [22]

   There was no substantial dispute between the parties as to how the provisions set out above should be applied. As a result, the relevant principles may be stated briefly.

2. [23]

   The “high degree of probability”, referred to in cl 2(1), indicates that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of “more probable than not”, but does not have to be proved to the criminal standard of “beyond reasonable doubt”: Cornwall v. Attorney General for New South Wales [2007] NSWCA 374 at [21]; Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11].

3. [24]

   The “unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient” in cl 2(1)(a) is to be given its ordinary or everyday meaning, and the right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an “unacceptable risk”: Lynn v State of New South Wales (2016) 91 NSWLR 636 at [44], [127] and [148]; [2016] NSWCA 57; Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [14]; Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 at [15].

4. [25]

   The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures: Lynn at [126].

5. [26]

   The evaluation of whether the risk is “unacceptable” is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection: Lynn at [61]; see also McGuire (No.2) at [55]-[59].

6. [27]

   Clause 2(1)(b) of Sch 1 has the effect that, even if satisfied to the requisite standard that there is an unacceptable risk of causing serious harm, the Court cannot make an extension order unless it is satisfied, to a high degree of probability, that this unacceptable risk “cannot be adequately managed by other less restrictive means”.

7. [28]

   Assessing whether the risk can be adequately managed by other less restrictive means involves determining:

   1. (1)

      whether the means proposed are less restrictive; and

   2. (2)

      whether the less restrictive means adequately manage the risk.

8. [29]

   As to the first of those matters, whether means are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96].

9. [30]

   The note to cl 2(1) of Sch 1 of the MHFP Act states:

10. [31]

    In the present case, it was common ground that, as the defendant was not mentally ill but only had an intellectual disability, he could not be involuntarily detained or treated under the Mental Health Act 2007 (NSW).

11. [32]

    As to whether the less restrictive means adequately manage the risk, Garling J said in McGuire (No.2) at [63]:

12. [33]

    Adamson J in Doolan (No. 2) at [100] identified a number of areas of difference in respect of the legal regimes that should be considered when assessing “less restrictive” and “adequacy of management”. Although her Honour was dealing with a different alternative regime from that proposed in the present case, the areas she identified give useful guidance, provided allowance is made for the different circumstances of the defendant in the present case. The areas of difference identified by Adamson J were:

13. [34]

    Under cl 2(2) of Sch 1 of the MHFP Act, the 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.

14. [35]

    Finally, under cl 7(2) of Sch 1, the Court must have regard to the matters listed in cl 7(2)(a) to (i), which have been set out above, when determining whether or not to make an extension order.

The defendant’s circumstances and offending

1. [36]

   The defendant was born in 1972 and is now 46 years of age. He has had, at all relevant times, an intellectual disability. Dr Susan Pulman, a clinical and forensic neuropsychologist, in her report dated 20 May 2008, stated that his then “current intellectual functioning fell in the Extremely Low range”, which meant that “he is functioning at a level below 99% of the normal population”. Associated with this level of functioning is impairment of cognition, affect and behaviour. He is effectively unable to read or write and consistently requires assistance with life skills, problem solving and emotional regulation. It was not in dispute that this intellectual disability is unlikely to change and is not amenable to therapy or medication.

2. [37]

   From the histories given to the medical practitioners and psychologists who have examined or interviewed the defendant, it appears that he was born in Ballarat, Victoria, the youngest of 9 children. The family moved to New South Wales and had frequent relocations. His father was at various times an itinerant worker, drove a truck and ran a scrap metal business. Some reports indicate that the defendant described the family as happy. Other reports indicate violence in the family home and the possibility of sexual abuse of children in the extended family. The defendant attended school until year 8, but was expelled. The defendant reported getting into trouble at school for fighting. After leaving school, he worked with his father.

3. [38]

   In his early twenties, he was in a relationship that lasted a number of years. There is one child, a daughter, from this relationship. After this relationship ended, the defendant lived an itinerant lifestyle with periods of homelessness. He had brief periods of unskilled employment. Between the mid-1990s until the mid-2000s, he lived north of Young.

4. [39]

   The defendant has a history of criminal offending dating back to 1996, when he was 24 years of age. Between 1996 and when the Index Offences were committed, he was convicted of various offences and sentenced to terms of imprisonment and fined. Aspects of this history can be adequately summarised, without being exhaustive, by noting the following:

   1. (1)

      In 1996, he was convicted of breaching an AVO and malicious damage, and sentenced to 7 days’ imprisonment;

   2. (2)

      In 1996, he was convicted of dangerous driving, driving while disqualified, and taking a conveyance without consent, and sentenced to 2 months’ imprisonment;

   3. (3)

      In 1997, he was convicted of stealing and assault with intent, and was fined;

   4. (4)

      In 1998, he was convicted of driving while disqualified, driving a conveyance taken without consent, larceny, driving an unregistered vehicle, and related driving offences, and sentenced to two periods of 4 months’ imprisonment;

   5. (5)

      In 2003, he was convicted of destroying or damaging property, behaving in an offensive manner in or near a public place or school, and custody of an offensive implement in a public place, and was fined;

   6. (6)

      In 2003, he was convicted of driving under the influence, driving recklessly, destroying or damaging property, and related driving offences, and sentenced to 12 months’ imprisonment with a non-parole period of 9 months and fined; and

   7. (7)

      In 2005, he was convicted of possessing an offensive implement in a public place and possessing or using a prohibited weapon, driving recklessly, and related driving offences, and sentenced to 12 months’ imprisonment with a non-parole period of 9 months and fined.

5. [40]

   It appears he was eligible for release on parole on 4 November 2005.

6. [41]

   The three Index Offences of sexual intercourse without consent knowing that the other person does not consent, contrary to s 61I of the Crimes Act, were committed on 4 April 2006 at Nowra. I shall refer to those offences in more detail when dealing with the outcome of the special hearing in respect of those offences.

7. [42]

   The defendant was apprehended on 17 August 2006 and remained on bail until October 2007.

8. [43]

   On about 26 October 2007, the defendant was re-apprehended and taken into custody. Arising out of his conduct on that day, he was charged with assaulting an officer in the execution of duty, resisting an officer in the execution of duty, assaulting a police officer in the execution of duty causing actual bodily harm, goods in personal custody suspected of being stolen, possessing housebreaking implements, and inflicting grievous bodily harm on a police officer executing duty.

9. [44]

   Because the defendant had previously failed to appear in accordance with his bail undertaking, he was convicted and sentenced to 6 months’ imprisonment commencing on 2 November 2007.

10. [45]

    On 25 August 2008, Garling DCJ found the defendant unfit to be tried in respect of the charges under ss 61I and 112 of the Crimes Act. His Honour directed that the matter be referred to the MHRT and that the defendant be detained.

11. [46]

    In the District Court on 19 June 2009, the defendant was convicted of the offences committed on 26 October 2007, when he was re-apprehended. He was sentenced to imprisonment for 2 years and 6 months, commencing on 26 January 2008, with a non-parole period of 1 year, 6 months and 18 days, with conditions, and his release was subject to supervision.

12. [47]

    On 31 August 2009, following a special hearing, Murrell DCJ found that, on the limited evidence available, the defendant committed the three Index Offences against s 61I of the Crimes Act. In her judgment, her Honour described the circumstances in the following terms:

13. [48]

    On 4 September 2009, in accordance with s 23(1) of the MHFP Act, Murrell DCJ imposed an effective total limiting term of 5 years, commencing on 1 January 2009 and expiring on 31 December 2013. Consequently, the defendant was referred to the MHRT and ordered into custody, under s 24 of the MHFP Act. Consequently, the defendant was a forensic patient. His status as such has been extended by the various orders of the Court referred to earlier in these reasons.

14. [49]

    As noted above, the MHRT ordered that the defendant be conditionally released into the community on 26 August 2013. His release was subject to a comprehensive set of conditions set out in the MHRT’s decision and reasons of 22 August 2013. Since that time, the defendant has remained a forensic patient on conditional release in the community, although the conditions have been revised by the MHRT from time to time. (A copy of the current conditions of the defendant’s release, made on 7 June 2018, can be found in Appendix 1 to these reasons for judgment.)

15. [50]

    Recent relevant developments in the defendant’s supervision by the MHRT have included the following:

    1. (1)

       On 19 May 2017, the MHRT conducted its 24th review of the defendant and varied his conditions to reduce the number of hours of supervision by the Criminal Justice Program (CJP) from 25 to 12 per week.

    2. (2)

       On 28 November 2017, the MHRT conducted its 25th review of the defendant and varied the conditions so as to allow Dr O’Dea to conduct a test of taking the defendant off anti-libidinal medication, to remove the requirement that the defendant have 12 hours of support per week in light of his improvement in engagement, and to allow support staff to determine the amount of support per week and how often and when drug and alcohol screening tests should be undertaken.

    3. (3)

       At a further review of the defendant in the MHRT on 29 May 2018, Dr O’Dea confirmed he had ceased to prescribe medication to treat the defendant’s alcohol dependence, acamprosate, in March 2018, and, as at 29 May 2018, there had been no reports of any relapse. Dr O’Dea also confirmed that he had reduced the defendant’s dose of anti-libidinal medication, Androcur, from 100 mg to 50 mg at night, but confirmed his view that the defendant needed to remain on the medication indefinitely in order to control his sexual behaviour.

16. [51]

    The defendant has also been the subject of guardianship and financial management orders under the Guardianship Act 1987 (NSW) for a considerable number of years. The terms of the guardianship order which is presently applicable to the defendant, made on 13 November 2018, are set out in Appendix 2 to these reasons for judgment.

17. [52]

    The defendant’s financial management order does not have any particular relevance in the present proceedings.

18. [53]

    Currently, the defendant lives in a unit in Panania. He spends some of his time sourcing, collecting and selling or swapping scrap metal. He keeps three old trailers at the home of his sister and brother-in-law in the Richmond-Windsor area. He is interested in obtaining his driver’s licence. His primary social life involves visiting his brother and his sister in Sydney. He receives support through the National Disability Insurance Scheme (NDIS) and from New Horizons, under the management and supervision of the CJP, and he remains subject to the supervision of, and conditions imposed by, the MHRT, given his status as a forensic patient.

Issues

1. [54]

   Whether a further order for an extension of the defendant’s status as a forensic patient, beyond 14 February 2019, should be made will depend on whether the Court is now satisfied to the requisite standard, having regard to the matters set out in cl 7(2) of Sch 1 and any other relevant matters, that:

   1. (1)

      The defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient: cl 2(1)(a) of Sch 1 of the MHFP Act; and

   2. (2)

      The risk cannot be adequately managed by other less restrictive means: cl 2(1)(a) of Sch 1.

2. [55]

   If the Court is so satisfied, it was common ground that any extension order should be for 2½ years, to allow a proper trial of any less restrictive conditions that the MHRT might decide to impose.

3. [56]

   I turn now to consider the matters to which the Court must have regard under cl 7(2) of Sch 1 of the MHFP Act.

Relevant matters under cl 7(2)

1. [57]

   The “safety of the community” is to be understood in the context of:

   1. (1)

      the objects of Pt 5 of the MHFP Act, which include “to protect the safety of members of the public”: s 40(a); and

   2. (2)

      cl 2(1)(a) of Sch 1, which directs attention to whether the defendant poses an unacceptable risk of “causing serious harm to others”.

2. [58]

   The defendant committed the Index Offences, which involved serious harm to the victim and to her 5 year old daughter. It is not necessary to repeat the details of what occurred, which have already been set out above. It is sufficient to observe that the victim, her daughter, members of the public, and the community are not safe when such offences are and can be committed.

3. [59]

   In addition, the defendant’s other criminal history establishes that members of the public and the community have been made unsafe and required protection as a result of the defendant’s breaching an AVO, his driving and related offences, his possession or use of an offensive weapon, his assaulting others, including a police officer who suffered grievous bodily harm, his consumption of excessive alcohol and the other conduct that has led to his being fined and imprisoned.

4. [60]

   I accept that the defendant’s intellectual disability has played a very significant causal role in his offending and reduces his moral culpability. It does not, however, reduce the need to take effective measures to ensure the safety of the community. His intellectual disability and circumstances give rise to a substantial risk of the defendant causing serious harm to others if those measures are not taken.

5. [61]

   In accordance with Button J’s orders under cl 6(5), reports were received from Dr Eagle, forensic psychiatrist, and Ms Howell, forensic psychologist, after their examinations of the defendant in December 2018 and January 2019, respectively.

6. [62]

   It can be noted here that the material with which Dr Eagle and Ms Howell were briefed included a factual assumption to the effect that the MHRT’s condition, that the defendant accept 12 hours of support, was removed by the Tribunal in November 2017. This was not correct. Dr Eagle’s and Ms Howell’s attention was drawn to what the MHRT had actually done. In effect, the MHRT replaced the requirement to accept 12 hours of support with a requirement to accept such support as his case manager determined. The terms of condition 9, as varied in November 2017, are now found in cl 2 of the current conditions set out in Appendix 1 to these reasons for judgment. Both Dr Eagle and Ms Howell indicated that this correction to their instructions did not cause them to change their opinions or evidence.

7. [63]

   Dr Eagle was not required for cross examination by either party. Her report was comprehensive and logical. Her conclusions were supported by her reasoning. Apart from those opinions of Dr Eagle based on an assumption that there has been no problematic sexualised or other conduct after the reduction in the dose of Androcur, outlined below, I accept her evidence and conclusions.

8. [64]

   Based on Dr Eagle’s report of 21 January 2019, I find, subject to the qualifications set out below, as follows:

   1. (1)

      At the assessment in December 2018, the defendant reported finding the support of the New Horizons case worker for about two days each week helpful, and that he enjoyed going to his family’s place at Richmond every weekend. He mentioned an interest in getting a driver’s licence. He also said that he had not consumed any alcohol for two years and that stopping the alcohol medication (acamprosate) had not made any difference to his desire to drink.

   2. (2)

      He denied being in a relationship, but changed topic when questioned about his interest in having a relationship with a woman. He returned to the topic of getting a driver’s licence and said that when he obtained his licence he would have no further need for the support of case workers.

   3. (3)

      When asked whether he thought his anti-libidinal medication, Androcur, was helping in any way, he said for “different reasons”. He said that Dr O’Dea, his treating psychiatrist, told him “you’re not getting sexual things”. He complained about the questions concerning his sexual behaviour, which he considered private. He also expressed discontent with the number of appointments he had to attend that week. He said “it’s hard to get in a likeable mood”. When redirected to the Androcur, he said it was “just the taste” that he did not like.

   4. (4)

      When asked again about having another relationship, he said that he had “permanent arguments about relationships with my family”. He became irritable at questions about the Index Offences and his sexual behaviours (such as masturbation). He maintained he would “never do it again”. He said that Androcur had reduced his testosterone and “you can see me fighting the medication”. He was unable to elaborate further on that comment.

   5. (5)

      The defendant declined to discuss the Index Offences during this assessment. In previous assessments with Dr Eagle, he had said “I don’t think I’m mental enough to do that again”, but he then said “if I done it”. He also said “I was afraid of the person’s dog next door” and “I never want to do something like that again”. During the December 2018 assessment, he again maintained he would never “do it again” when asked about the Index Offences.

   6. (6)

      In relation to the MHRT’s determination of 29 May 2018, Dr O’Dea’s evidence to the Tribunal was that the defendant had ceased the acamprosate two months prior. In addition, the doctor had reduced the defendant’s dose of Androcur from 100mg to 50mg at night. When asked, Dr O’Dea confirmed it was his opinion that the defendant needed to remain on Androcur indefinitely, notwithstanding that he agreed it would be better to trial a cessation of Androcur while the defendant was subject to a forensic order. In his opinion, from a risk management perspective, the defendant should continue to take the anti-libidinal medication in order to control his sexual behaviour. The defendant has clearly indicated that he would not continue with the medication if it were not mandated, and he has reported non-compliance in May 2018.

   7. (7)

      Dr Eagle also reported that the defendant had tolerated a reduction in his anti-libidinal medication and “had not shown any apparent increase in problematic sexual behaviours, frustration tolerance or emotional dysregulation. It is difficult to say with any certainty the role that the medication might be having in reducing [the defendant’s] risk of sexual reoffending”. That part of her report appears to be inconsistent with the incidents that occurred in June to August 2018. These incidents are dealt with in more detail later. As Dr Eagle’s opinion appears to be based on a misunderstanding of the true situation, I do not accept her conclusions or comments in this specific regard. I accept the views of Dr O’Dea, concerning the efficacy and need for the defendant to take Androcur to control his sexual behaviour and to reduce his risk of sexually reoffending, as referred to in the preceding subparagraph.

   8. (8)

      The diagnosis in respect of the defendant is:

   9. (9)

      As to the risk of violent reoffending, the defendant manifests:

   10. (10)

       The risk of violent reoffending has been adequately managed under the current forensic order and with the benefit of the psychosocial supports in place in combination with a lower dose of Androcur. If his status as a forensic patient were to lapse, potential future problems with risk management would include:

   11. (11)

       As to the risk of sexual reoffending:

   12. (12)

       The defendant does pose a risk of causing serious harm to others if he ceases to be a forensic patient, without adequate monitoring and supports in place, in the light of the following:

9. [65]

   Dr Eagle expressed the view that the primary value of a forensic order in the management of the defendant is the regular review by the MHRT, the ability to enforce treatment and compliance through conditions (to which he has shown himself willing to adhere), and the recall to hospital or other facility if any deterioration in mental state or the warning signs emerge and the degree of risk requires it. Guardianship arrangements, in her view, essentially allow substituted decision making and cannot provide supervision, monitoring (which, in the case of alcohol, is likely to have been a deterrent) or adequate or effective response to situations of increased risk.

10. [66]

    Dr Eagle noted, and I accept, that the process of obtaining yearly extensions of his status as a forensic patient has been challenging for the defendant and he has expressed frustration at the repeated appointments. A longer extension would also afford an opportunity to demonstrate a sustained period without reoffending, with limited or no supervision and support, and following cessation of anti-libidinal medication. If the Court determined to extend his status as a forensic patient, a longer period than one year would be appropriate.

11. [67]

    Ms Howell, forensic psychologist, provided her report dated 21 January 2019. She was not required for cross examination by either party.

12. [68]

    The defendant’s counsel, Ms Tringali, submitted that I should not accept Ms Howell’s evidence, or should give it little weight because Ms Howell was not a medical practitioner and was not qualified to express an opinion concerning the prescription and reducing or ceasing acamprosate or Androcur, which were significant matters when considering the risk posed by the defendant. While Ms Howell acknowledged that she was not qualified to express an opinion on medical matters such as prescribing drugs, she is a forensic psychologist, whose opinions within her area of expertise are not diminished in value because of her quite proper acknowledgement.

13. [69]

    Ms Howell’s evidence was, in substance, consistent with that of Dr Eagle, although she did provide some additional insights concerning possible deterioration in the defendant’s family relationships and his negative attitude to psychological treatment in respect of his sexual offending.

14. [70]

    Based on Ms Howell’s evidence, I am satisfied that:

    1. (1)

       The defendant said he did not remember any details of the assault on the victim. When Ms Howell asked him about what he could tell her about the Index Offences, he became quite agitated saying that, within his own extended family, an uncle sexually assaulted his own children and “no” consequences have been applied. At this point, the defendant became very distressed and said he has experienced consequences for his behaviour. He stated he wanted to be “left alone”. He had been in custody and since release had abided by all restrictions and added his urines had been “clean”. He then stated that he had said “goodbye” to the victim on leaving her home.

    2. (2)

       He did not want to talk about whether there had been violence between him and his daughter’s mother and stated that he did not want to talk about his daughter or grandchildren or his past relationships.

    3. (3)

       The defendant reported that he was finding it difficult with his family as his only social interaction. He described visits to his family as “boring” and his sister always asks him to “work” around their property in order to get food to eat. He stated that his sister, brother-in-law and family friends were “spiteful” to him and he always has to pay his own way, purchase any food, smokes and any other thing, while at their home.

    4. (4)

       Although the defendant said he thought it would be good to live with his brother, who lives in Sydney, he added that he wanted his “independence”.

    5. (5)

       The defendant said it was over two years since he had consumed alcohol, and denied any cravings for it. He denied recent use of illicit drugs apart from “one cone” when he visited a brother.

    6. (6)

       The defendant became quite agitated and angry when issues concerning sex offender treatment in relation to the Index Offences were raised with him. He has untreated risk factors for reoffending, is resistant to such treatment, and denies he poses a risk or needs treatment.

    7. (7)

       On the Static-99R scale, the defendant was placed in the Above Average Risk level for being charged with, or convicted of, a further sexual offence.

    8. (8)

       Applying the Risk of Sexual Violence Protocol, consideration of the dynamic risk factors indicates they are in the Moderate range. The dynamic factors associated with the defendant’s risk of sexually re-offending fall across five scales: the Sexual Violence Scale (use of physical coercion); Psychological Adjustment Scale (problems with minimisation, problems with self-awareness and stress and coping); Mental Disorder Scale (intellectual disability, and history of substance abuse and alcohol problems); Social Adjustment Scale (problems with intimate and non-intimate relationships); Manageability Scale (problems with treatment, planning and supervision). In particular:

    9. (9)

       The defendant’s risk of reoffending could escalate if he does not receive appropriate support to reintegrate into the community, or if his family relationships deteriorate. He stated that “everything will change after he gets his driver’s licence” but was unable to say how.

    10. (10)

        The defendant is unable to discuss his thoughts prior to, during and following the Index Offences. He does not demonstrate any insight into the inappropriateness of his conduct and denies that his behaviour harmed the victim.

15. [71]

    Ms Howell was of the view that the defendant’s untreated risk factors, and support and supervision needs, indicated that he would benefit from management as a forensic patient, subject to the support of the MHRT and conditional release orders.

16. [72]

    The report required to be provided under cl 5 (b) of Sch 1 to the MHFP Act was from Dr Richard Furst, a consultant forensic psychiatrist, and was dated 6 November 2018.

17. [73]

    In that report it was noted that the defendant did not provide his consent to being examined by Dr Furst or any other practitioner for the purposes of the report. Consequently the report was prepared on the basis of the documents provided to Dr Furst.

18. [74]

    Dr Furst provided a comprehensive review of the documentation concerning the defendant’s diagnosis, treatment, and supervision by the MHRT.

19. [75]

    In summary, Dr Furst’s evidence was largely consistent with that of Dr Eagle. From the documentary material provided, he concluded that the defendant met the DSM – 5 criteria for the diagnosis of:

    1. (1)

       intellectual disability (mild range);

    2. (2)

       alcohol use disorder (in remission);

    3. (3)

       antisocial personality traits.

20. [76]

    He also concluded that the defendant’s primary mental health issue or disorder what his intellectual disability. Applying the Static-99R instrument for the defendant, as explained at pp 34-35 of his report, the defendant would be classified as level IV – a, that is an offender at a perceptibly above average risk compared to the typical offender. Dr Furst was of the view that this assessed risk level was likely to remain reasonably constant over time, as it was based on static (historical) factors.

21. [77]

    In terms of the needs of the defendant for ongoing management as a forensic patient, subject to support of the MHRT and conditional release orders, Dr Furst considered the most relevant factors to be:

    1. (1)

       the defendant’s cognitive impairment;

    2. (2)

       his risk profile in the moderate – high range according to the Static-99R;

    3. (3)

       the impulsive and opportunistic nature of his sexual offences in 2006, his previous criminality and a previous tendency to drink to excess;

    4. (4)

       his apparent limited capacity for emotional regulation and for problem-solving skills; and

    5. (5)

       the need for provisions to place him in appropriate supported accommodation, maintain abstinence from alcohol and illicit drugs, ensure testing can be conducted to establish abstinence from alcohol and illicit doubt drugs, ensure compliance with medical/psychiatric appointments, ensure compliance with appropriate medication, such as anti-libidinal medication, and ensure ongoing provision of supportive case management, programs of rehabilitation and counselling.

22. [78]

    In Dr Furst’s opinion, less restrictive means of managing the defendant, such as through the civil mental health scheme, the making of a guardianship order, or supervision by CJP/New Horizons on a voluntary basis in the absence of a forensic order, would not be sufficient to manage his clinical needs and known risk factors.

23. [79]

    Dr Furst noted that the defendant probably does not meet criteria for the diagnosis of paraphilia according to DSM – 5. He went on to observe, however, that the defendant has been treated with Androcur over the last five years which may have controlled any such deviant cognitions and/or behaviour, should the defendant have been prone to such deviant cognitions and/or behaviour in the first place. He went on to say:

24. [80]

    It was also noted that ensuring compliance is more difficult with oral medication, since in the defendant’s case there are insufficient clinical hours allocated for this purpose. Monitoring of his hormonal profile, especially his serum testosterone levels, would also serve as an indirect measure of compliance. Dr Furst also noted the contraindications for the use of Androcur and similar matters.

25. [81]

    Dr Furst observed that measures to ensure that the defendant remained abstinent from alcohol and illicit drugs could also be applied and monitored as part of his conditional release requirements as a forensic patient. This would not, in his opinion, otherwise be possible. Given alcohol was clearly a factor in his Index Offending in April 2006, such measures are, in his opinion, prudent and likely to reduce the risk of future offending.

26. [82]

    Although Dr Furst’s report was based entirely on the documentation, I accept his evidence as corroborative of the evidence of Dr Eagle and Ms Howell.

27. [83]

    The defendant did not provide any medical or psychological reports in these proceedings. A number of earlier reports from psychiatrists, other medical practitioners and psychologists were included in the material provided by the Attorney General. In many cases this material has been expressly referred to and considered by Dr Eagle, Ms Howell and Dr Furst in their latest reports. The earlier reports are substantially consistent with the opinions expressed by Dr Eagle, Ms Howell and Dr Furst summarised above.

28. [84]

    The relevant orders made by the MHRT have been referred to above and the conditions originally imposed and the variations to those conditions have already been discussed. I also note that the Tribunal”s orders and conditions have been considered and commented on by each of Dr Eagle, Ms Howell, and Dr Furst in some detail in their most recent reports.

29. [85]

    The report of this nature, to which the defendant drew particular attention and relied upon, was the Risk Manageability Assessment carried out on 18 May 2018 by Mr Gullota, senior clinical consultant with CJP, and Mr Wu, team leader with CJP. Mr Gullotta and Mr Wu assessed the defendant’s risk of reoffending using the Static-99R and the ARMIDILO-S tools.

30. [86]

    As to the Static-99R assessment, Mr Gullotta and Mr Wu relied on research reported in a journal article by Hanson, Harris and others. Their assessment included the following:

31. [87]

    Applying the ARMIDILO-S tool, Mr Gullotta and Mr Wu concluded that the defendant’s rating was “Low – Moderate risk category with Moderate protective factors” (emphasis in original).

32. [88]

    Their risk summary was in the following terms:

33. [89]

    In effect, the defendant submitted that Mr Gullotta’s and Mr Wu’s risk assessment should be accepted, and that the Court should conclude that the defendant’s risk of reoffending was in the low range and, in all the circumstances, an extension of the defendant’s status as a forensic patient was not justified.

34. [90]

    Mr Gullotta’s and Mr Wu’s risk assessment has been considered by Dr Furst and Dr Eagle. Dr Furst did not accept the reasoning of Mr Gullotta and Mr Wu and maintained that the defendant’s risk assessment was perceptibly above average. In particular, Dr Furst addressed the research relied upon by Mr Gullotta and Mr Wu in the following terms:

35. [91]

    Dr Eagle dealt with the issue more briefly. At paragraph 98 of her report she noted:

36. [92]

    As I understand it, Dr Eagle is pointing out that the current support service model, being the conditions imposed by the MHRT and the defendant’s management and supervision by the MHRT and the CJP, has achieved the result that his risk of reoffending can be assessed as low. If, however, the defendant’s status were to change and he was no longer subject to those conditions, or under the supervision and management of the MHRT and the CJP, his risk of reoffending would be unlikely to remain low.

37. [93]

    Bearing this in mind, and noting the criticisms by Dr Furst, quoted above, I am not persuaded that the defendant’s risk of sexual or violent reoffending should be characterised as low if he ceased to be a forensic patient. Rather, I accept the risk assessments of Dr Eagle, Ms Howell, and Dr Furst.

38. [94]

    There are reports of the defendant’s non-compliance with various conditions imposed by the MHRT. These include periods during 2016 and 2017 of not taking medication due to its side-effects and, by way of more recent examples:

    1. (1)

       the instances where the defendant was not present or refused support on 2 August, 7 September, 24 September, 2 October, 12 October and 23 October 2018 as referred to in Mr Gullotta’s report dated 31 October 2018;

    2. (2)

       his failure to attend an appointment on 3 August 2018 and his declining to see Dr Ellis on 7 August 2018;

    3. (3)

       the reported non-compliance with taking Androcur in May 2018 referred to by Dr Eagle.

39. [95]

    Nonetheless, I am prepared to accept the defendant’s submission that he has, for the most part, been compliant with weekly breath tests, monthly CDT blood tests, attending his medical appointments with Dr O’Dea, taking his medication, and otherwise complying with the MHRT orders.

40. [96]

    It should be noted, however, that, if the defendant were not a forensic patient and subject to conditions imposed by the MHRT, he has indicated that he would not take anti-libidinal medication, and there is a substantial risk that he would not accept support or submit to testing and treatment, on a voluntary basis.

41. [97]

    The existing extension order was imposed Bellew J on 23 November 2017 and continued on an interim basis until 14 February 2019. His Honour’s views in Attorney-General of New South Wales v McGuire [2017] NSWSC 1572 included the following:

42. [98]

    It was not suggested that any of the views expressed by the Court at the time when the limiting term was imposed, or when the other extension orders in respect of the defendant were made, justified separate consideration or different conclusions from those reached by Bellew J.

43. [99]

    The views of Bellew J support the conclusions I have reached.

44. [100]

    At this point, it is appropriate to deal with two incidents, which appear not to have been specifically addressed in the latest psychiatric and psychological reports.

45. [101]

    The first occurred on 26 June 2018 and involved problematic sexualised behaviour. The incident report, prepared by the female support worker involved, recorded the following:

46. [102]

    Under the heading “What actions have been taken?”, the incident report stated:

47. [103]

    This was not the only time that the defendant was noted to have raised the possibility of going to a brothel. In a client risk assessment by New Horizons of 5 July 2018, the incident on 26 June was noted and the following comment made:

48. [104]

    There was a further incident on 7 August 2016, which involved aggressive behaviour. The incident report concerning that incident recorded:

49. [105]

    These incidents are significant as they occurred after Dr O’Dea had reduced the defendant’s dose of anti-libidinal medication, Androcur. Dr Eagle does not appear to have been aware of them. Her opinions and conclusions were apparently based on the assumption set out in her report at par 100.3.1.3 as follows:

50. [106]

    Since the defendant’s sexual offending was motivated by a desire to meet his sexual needs and his underlying disinhibition arising from his intellectual disability, combined with the further disinhibition from alcohol, these incidents in the latter half of 2018, after his anti-libidinal medication was reduced, give rise to significant concern. They indicate that a management regime that did not involve mandated regular testing for alcohol and drugs and taking of an anti-libidinal medication would be unlikely to manage adequately the defendant’s risk of sexual or violent reoffending.

51. [107]

    If, as has been suggested in the MHRT’s determination of 26 November 2018 to adjourn a further review, the defendant is to undertake a trial of ceasing to take anti-libidinal medication, it appears to me to be necessary to ensure that he is the subject of close supervision and intensive support during the trial. It would also be important, during such a trial, to have a means of removing the defendant from the community, if the risk of harm warranted such action.

52. [108]

    It is now necessary to address the particular questions raised in this matter, having regard to all of the matters set out above.

Does the defendant pose an unacceptable risk of causing serious harm to others if he ceases being a forensic patient?

1. [109]

   The defendant submitted that he did not pose such a risk, having regard to a number of factors.

2. [110]

   First, it was said that his abstinence from alcohol for several years, and his unwillingness to consume alcohol again without any order requiring this, supported the conclusion that the defendant does not pose an unacceptable risk.

3. [111]

   While the defendant has not consumed alcohol for some years and, commendably, had not consumed alcohol when with his family and a fight occurred, Dr Eagle expressed the view that the testing and monitoring of the defendant are likely to have been a deterrent that ensured he did not consume alcohol. In my view, the defendant’s abstinence from alcohol while being tested and monitored does not establish that he would not consume alcohol if he were not a forensic patient and not subject to such supervision. Alcohol played a significant part in the Index Offences and in aspects of the defendant’s other offending. It remains a significant risk factor if the defendant ceases to be a forensic patient.

4. [112]

   Secondly, it was submitted that the defendant’s intention not to reoffend in future and lack of signs of reoffending were a further ground for finding that he did not pose a relevant risk. The problem with this submission is that the defendant’s underlying intellectual disability, together with his refusal or inability to discuss his conduct or to engage with or complete psychological treatment in relation to the Index Offences, means that little if any weight can be placed on the defendant’s statements that he does not intend to reoffend. Further, he has not had a significant opportunity to reoffend because of his status as a forensic patient. Thus, the absence of signs of reoffending is not significant.

5. [113]

   Thirdly, the defendant submitted that lack of demonstrated benefits from anti-libidinal medication was another reason to find that he did not pose an unacceptable risk. This submission was based, at least in part, on the comment by Dr Eagle that there had been a reduction in his prescribed dose of Androcur without any evident emergence of increased problematic sexual behaviours or violent behaviours. As explained above, this comment did not take into account the incidents in June to August 2018. On the evidence, there has been some re-emergence of problematic sexual behaviours and violent behaviours since the reduction in dosage. I accept Dr O’Dea’s view, expressed to the MHRT in May 2018, that the defendant needs to remain on the anti-libidinal medication indefinitely in order to control his sexual behaviour.

6. [114]

   Fourthly, the defendant’s submission was that the lack of increased problematic sexualised or violent behaviour, and improved emotional responses to being medically assessed, also supported the conclusion that the defendant did not pose an unacceptable risk. Dr Eagle does say in her report that the defendant displayed “better control of his emotional responses” when he was assessed by her in December 2018. Nonetheless, in the light of the incidents and reported comments in June to August 2018, and the defendant’s negative comments concerning attending medical appointments, and an expressed intention of going to see “no one after I’m off this thing”, I do not accept that the premises for this submission are established.

7. [115]

   Next, the defendant submitted that his successful involvement and integration into the community and lack of risk caused in this regard were also bases for finding no unacceptable risk. The only evidence of the defendant’s involvement and integration into the community relates to periods when he has been a forensic patient and subject to orders and supervision. In my view, this does not establish that there would be likely to be little or no risk, if he were not a forensic patient. The evidence of the psychiatrists and the psychologist does not support this submission.

8. [116]

   The defendant also submitted that the benefits, including the therapeutic effect of the scrap metal work, referred to as a protective factor in some of the dynamic risk assessments, meant that he should not be found to pose an unacceptable risk. The support which the defendant receives as a forensic patient allows him to carry on his scrap metal collecting. It is difficult to assess what he would do if he were not a forensic patient. While it is accepted that the scrap metal work has some therapeutic benefit, it does not follow that the defendant would not pose an unacceptable risk if he continued his scrap metal activities while not being a forensic patient, given the other factors and circumstances in the present case.

9. [117]

   The risk assessment undertaken by Mr Gullotta and Mr Holper from New Horizons was relied upon by the defendant in opposing the making of an extension order. This assessment was referred to in the MHRT’s determination of 7 June 2018 but little information is given beyond the conclusion that the Static-99R and ARMIDILO-S tools disclosed “low-moderate risk category with moderate protective factors and in the low risk category for future sex offending”. A similar assessment by Mr Gullotta and Mr Wu, later in 2018, has been dealt with above. In the absence of the information as to the specific factual basis for that assessment, and in the light of the comments made in relation to Mr Gullotta and Mr Wu’s assessment, I would not adopt this assessment of risk rather than those of Dr Eagle, Ms Howell, and Dr Furst.

10. [118]

    Another submission made by the defendant was that his age was a factor which tended to support the conclusion that he does not pose an unacceptable risk. While it might be accepted that an absence of offending conduct after release, and as a person ages, can be an indicator of reduced risk, this is unlikely to be applicable in the defendant’s case for at least two reasons. First, the defendant has been released into the community but subject to strict conditions and supervision as a result of his status as a forensic patient. Consequently, the likely inference is that these conditions and supervision have reduced the opportunity for, and likelihood of, reoffending. Secondly, the defendant’s intellectual disability is a significant underlying cause of many of his risk factors and the experts were agreed that this is not likely to change in the future as he ages.

11. [119]

    In my view, the overwhelming weight of the psychiatric and psychological evidence is that the defendant’s risk of sexual reoffending and violent reoffending is moderate, that is, above average compared to other offenders. The defendant’s dynamic risk assessment, while he has been subject to the orders and supervision of the MHRT and receiving support from the CJP, is not indicative of the risk he poses if he were not a forensic patient.

12. [120]

    The evidence of Dr Eagle, Ms Howell, and Dr Furst also establishes that if the defendant were not a forensic patient there is a real likelihood that he would not take anti-libidinal medication, would not accept treatment, might not accept support, and might change his current lifestyle arrangements, especially if he was successful in obtaining his driver’s licence. In these circumstances, the risk of harm to the community would be significantly raised.

13. [121]

    The defendant’s prior history of offending, including but not limited to the Index Offences, the seriousness of possible future sexual or violent offending by the defendant, and the fact that the risk of such offending will arise in the immediate future if the defendant is not a forensic patient, establish that the risk is unacceptable, in the context of making the community secure from harm.

14. [122]

    For these reasons, and given the circumstances referred to in detail in these reasons for judgment, I am satisfied to the high degree of probability required in cl 2 of Sch 1 of the MHFP Act, that the defendant does pose an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

Can the risk be adequately managed by other less restrictive means?

1. [123]

   As to the second limb of the test in cl 2(1)(b) of Sch 1, one matter that must be borne in mind is that the defendant has not been diagnosed as suffering from any mental illness. That means he cannot be managed as a patient being involuntarily detained or treated as a patient under the Mental Health Act.

2. [124]

   The defendant submitted that his guardianship and financial management orders, with appropriate ongoing funding from the NDIS, provide an effective, less restrictive means of adequately managing the risk. This was said to be so, because of recent findings by Dr Eagle and the defendant’s attitude towards his future, particularly in relation to alcohol, seeking assistance when required, and his future plans for himself and his scrap metal work.

3. [125]

   I accept that a regime of guardianship and financial management orders, with appropriate ongoing funding from the NDIS, would be a less restrictive regime than maintaining the defendant’s status as a forensic patient.

4. [126]

   The defendant acknowledged in his written submissions, however, that the principles relating to guardianship do not provide for community protection, nor the protection of others generally. This is correct. Section 4 of the Guardianship Act establishes the principles to be observed by everyone exercising functions under that Act as follows:

5. [127]

   Persons appointed, under the Guardianship Act, as guardians or financial managers for a person are therefore required, among other things, to give paramount consideration to the interests of that person. Further, the views of the subject person should be taken into account. The need to protect the community from harm and to protect the safety of members of the public do not figure as principles to be applied by guardians or financial managers. This is different from the situation under the MHFP Act. The objects of Pt 5 of the MHFP Act, which are set out above, cover both the interests and protection of the safety of members of the public, as well as providing for the care, treatment, and control of persons who are forensic patients.

6. [128]

   There is some scope for a guardian to take coercive action if a person the subject of a guardianship order refuses to take medication that the guardian decides the person should take, or refuses to attend medical or similar appointments, or receive treatment that the guardian determines should be attended or received. Action to force a subject person to comply with a guardian’s decisions might be able to be taken, for example, if, in the guardianship order, a coercive function was expressly conferred pursuant to s 46A of the Guardianship Act. It should be noted, however, that s 46A(4) provides:

7. [129]

   No such coercive function is conferred under the current guardianship order applicable to the defendant. In addition, enforcement by coercion could not generally be undertaken by a guardian promptly or without admission to a hospital. Furthermore, there would also be significant doubt whether a guardian could require a person the subject of a guardianship order:

   1. (1)

      to take medication;

   2. (2)

      to undergo testing for alcohol or illicit drugs; or

   3. (3)

      to undergo testing to monitor their testosterone level,

8. [130]

   An appreciation of the differences between how the risk posed by the defendant could be managed by the MHRT, as compared to how that risk could be managed under a guardianship order can be gained by comparing:

   1. (1)

      the orders of the MHRT presently applicable in respect of the defendant, set out in the Appendix 1 to these reasons for judgment; and

   2. (2)

      the current order of the Guardianship Division of the Civil and Administrative Tribunal of New South Wales (NCAT) concerning the defendant, set out in Appendix 2.

9. [131]

   In my view, given their respective natures and functions, the MHRT is better able to manage the risk of causing serious harm to others posed by the defendant than the Guardianship Division of NCAT. The evidence of Dr Eagle and Dr Furst as to the difficulties and risks involved in having the defendant managed under a guardianship and financial management regime, instead of as a forensic patient, support this conclusion.

10. [132]

    As to the defendant’s attitude towards his future, particularly in relation to alcohol, seeking assistance when required, and his future plans for himself and his scrap metal work, Dr Eagle’s comments in relation to these matters, taken in the context of her report as a whole and in the light of the other information available, do not support the conclusion that a guardianship and financial management regime would adequately address the risk posed by the defendant. Ms Howell and Dr Furst are also of the view that such a management regime would not adequately address the defendant’s risk level.

11. [133]

    Finally in this regard, I note the comments of the CJP and New Horizons staff responsible for managing and supervising the defendant, concerning the possibility of adequate funding not being available. While the evidence does not allow any definitive conclusions to be drawn, it is distinctly possible that the risk of lack of funding, leading to inadequate management of the defendant, would be greater if the defendant is managed under a guardianship and financial management regime instead of as a forensic patient.

12. [134]

    On the evidence, I am satisfied to the requisite standard that the risk in relation to the defendant cannot be adequately managed by other less restrictive means than the making of an order extending the forensic status of the defendant.

For how long should an extension be made?

1. [135]

   It was common ground that, if the Court is satisfied to the requisite standard of the matters in cl 2(1)(a) and (b), any extension order should be for 2½ years. This will allow for a proper trial of any changes in medication or less restrictive conditions that the MHRT might decide to impose. This approach is supported by the evidence of Dr Eagle at par 100.10.1 of her report, where she said that a longer period, such as 2½ years, would also be less disruptive for the defendant’s lifestyle and his engagement in his management.

2. [136]

   I consider it to be the proper approach in the present case.

3. [137]

   If circumstances change, and the period of 2½ years is no longer appropriate, an application to revoke or vary the extension order can be made under cl 12 of Sch 1 of the MHFP Act.

Orders

1. [138]

   For these reasons, I make the following orders:

   1. (1)

      Pursuant to cl 1 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant is subject to an extension order for a period of 2 years and 6 months expiring on 13 August 2021.

   2. (2)

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