Attorney General of New South Wales v Kereopa (Final)

1. [1]

   The Attorney-General applies for an order pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFPA) for an order extending the defendant’s status as a forensic patient for a period of two years. The defendant, by his tutor Barbara Ramjan, does not oppose the making of such an order for that period.

2. [2]

   The defendant has been a forensic patient since 7 November 2014 when he was found by Judge Jeffreys in the District Court to be unfit to be tried on some 21 offences committed in and around January 2014.

3. [3]

   After a special hearing conducted by Judge Hoy SC on 2 September 2015, the defendant was found guilty of those offences on the limited evidence available. On 10 September 2015, Judge Hoy SC imposed an overall limiting term of three years and three months commencing 24 January 2014 and concluding 23 April 2017.

4. [4]

   On 18 April 2017 I made an interim order under the Mental Health (Forensic Provisions) Act 1990 (NSW) extending his status as a forensic patient: Attorney-General of New South Wales v Kereopa [2017] NSWSC 411. On 14 July 2017, R A Hulme J extended the defendant’s status as a forensic patient for a period of two years: Attorney-General of New South Wales v Kereopa (No 2) [2017] NSWSC 928.

5. [5]

   On 1 July 2019 Fagan J made an interim extension order for a three month period, and on 10 October 2019 Harrison J extended the defendant’s status as a forensic patient for a two year period expiring 12 October 2021: Attorney-General of New South Wales v Kereopa [2019] NSWSC 1339.

6. [6]

   On 7 October 2021 Ierace J made an interim extension order for a three month period expiring 11 January 2022: Attorney-General of New South Wales v Kereopa (Preliminary) [2021] NSWSC 1617.

7. [7]

   The present summons was filed on 11 August 2021, and by reason of the history I have given, the provisions of s 124 of the MHCIFPA are satisfied.

8. [8]

   By reason of (a) the extensive detail in the judgments mentioned above in relation to the defendant concerning his offending, his diagnoses, his treatment, and his compliance; (b) the lack of opposition to the order sought; and (c) the fact that reasons are being prepared within the Court vacation and subject to an imminent expiry date of the defendant’s status as a forensic patient, these reasons will be briefer than might otherwise have been provided.

9. [9]

   The defendant’s criminal history was summarised by Harrison J in Kereopa [2019] NSWSC 1339 as follows:

Psychiatric reports

1. [10]

   Dr Richard Furst prepared a report dated 28 June 2021. At the time, consideration was being given to instituting the present proceedings. The defendant declined to be assessed for the purpose of the report, and Dr Furst’s report was based on an examination of a significant number of documents including psychological and psychiatric reports from as early as 2006, but mostly concentrated in the years immediately prior to the report. He also considered various decisions of the Mental Health Review Tribunal and the various judgments of this Court.

2. [11]

   Dr Furst noted that the defendant’s previous experiences of auditory hallucinations, visual hallucinations and delusions of reference had resolved when treated with the anti-psychotic medication Paliperidone in custody prior to his transfer to the Bunya Unit on 27 November 2017.

3. [12]

   Dr Furst said that it was noted by his treating team at Bunya that the defendant had a long history of difficulty engaging with treatment and appropriate services, both in custody and in the community. He also had a history of non-adherence to medication, non-compliance with the program/treatment expectations, reoffending when on probation/supervision, and failure to comply with legal obligations, including when placed in supervised environments. He also had a history of absconding from care when frustrated.

4. [13]

   When released from the Bunya Unit in July 2018, Dr Furst noted that his discharge diagnoses were:

5. [14]

   On the other hand, Dr Kerri Eagle, who had prepared reports in February and March 2017, whilst diagnosing the defendant with Schizophrenia, Severe Substance Use Disorder, Intellectual Disability and Antisocial Personality Traits, had been reluctant to diagnose him with ADHD, on the basis that it was difficult to distinguish the symptoms of inattention and hyperactivity in ADHD from those seen in major mental illness and intellectual disability. Dr Furst agreed with Dr Eagle's assessment in that regard.

6. [15]

   Dr Furst was asked to assess the extent to which each of the conditions with which he diagnosed the defendant affected the defendant's risk of re-offending. Dr Furst said the defendant had a history of impulsivity and periods of emotional dysregulation as a consequence of his intellectual disability and, to a lesser degree, the cognitive deficits inherent in schizophrenia. Those factors placed him at risk of making impulsive and poor decisions, and also made him potentially vulnerable to the influence of others, as was the case in relation to his offending as a juvenile/adolescent.

7. [16]

   Dr Furst considered that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient.

8. [17]

   Dr Furst said that the defendant had a high loading of historical risk factors, and a relatively low loading of current/dynamic risk factors, and this meant that the current management plan and the restrictive measures inherent in his conditional release orders had been effective in addressing his identified risk factors, and preventing a relapse into more regular drug use, addiction and related criminality over the past three and a half years. He said that such externally imposed provisions/restrictions had also prevented the defendant from gravitating towards negative peer influences, which was one of the biggest factors in relation to his persistent juvenile offending and his index offending.

9. [18]

   Dr Furst said that there was little evidence of internal motivation for change, insight or any change in his moral compass in relation to his personal risk factors or regard for others, suggesting his risk of relapsing into drug use and related criminal offending would be reasonably high without the measures imposed upon him as a forensic patient.

10. [19]

    In answer to a question asking for Dr Furst's recommendations for the least restrictive form of management of the defendant's risk of harm to others, Dr Furst said that the current care arrangements were appropriate, being: (1) the defendant continuing to reside at Wentworthville PIYC; (2) ongoing case management through Western Sydney LHD; (3) adherence to the conditional release conditions stipulated by the Mental Health Review Tribunal in their order of 5 May 2021; and (4) continuation of his status as a forensic patient.

11. [20]

    Dr Furst said that his status as a forensic patient provided the most comprehensive and appropriate means of managing identified risk factors, and that it had already been successful over the previous three and half years in preventing him from reoffending and returning to custody. Dr Furst thought that there was no other less restrictive option appropriate for the defendant. He thought a further period of two years would be an appropriate period for extension of his status as a forensic patient, because this would allow enough time for further transition into the community and further rehabilitation measures to be implemented.

12. [21]

    Pursuant to the orders made by lerace J, the defendant was examined by Dr Martin, a forensic psychiatrist, and Dr Marcelo Rodriguez, a psychologist.

13. [22]

    Dr Martin said in his report of 10 November 2021 that the defendant demonstrated some insight into the nature of the problematic effect of substances, and that he acknowledged the diagnosis of mental health problems and the need for ongoing treatment.

14. [23]

    Dr Martin diagnosed the defendant suffering from Schizophrenia, Intellectual Impairment, Substance Use Disorder and Antisocial Personality Disorder. Dr Martin also thought that it was plausible that the defendant suffered from ADHD based on his developmental history, but he said that whether this was a primary diagnosis was somewhat academic.

15. [24]

    He said it was likely that a complicated interplay between factors associated with those mental disorders would result in there being ongoing risk of re-offending. He said that the defendant's current mental state appeared to be reasonably stable, which was probably a reflection of depot anti-psychotic treatment, abstinence from substances, regular support and a stable accommodation setting. He said, however, that were the defendant to experience a relapse of psychosis, as was certainly possible, then it would be foreseeable that he would be vulnerable to poor judgment and disinhibited behaviour, and might engage in disorganised, impulsive or offending behaviour. Dr Martin said that the defendant was clearly prone to impulsive behaviour, inferred from his history, and taking into account the diagnoses of ADHD, Antisocial Personality Disorder, Intellectual Disability and mental illness (presumably the Schizophrenia).

16. [25]

    Dr Martin thought that there was a foreseeable risk of the defendant causing harm to others if he ceased to be a forensic patient.

17. [26]

    Dr Martin said that the defendant did not appear to have ongoing violent ideation or intent, based on mental state examination and more recent information, and did not appear to be presenting with symptoms of major mental disorder or instability or treatment/supervision response. He said this was probably testament to stringent legal conditions, regular supervision and assertive psychiatric treatment.

18. [27]

    Dr Martin said there was significant weighting of historical, static and essentially unchangeable risk factors, which meant that the defendant was likely to be considered objectively at least at a moderate risk of offending and consequent harm to others for the foreseeable future. The defendant's risk of re-offending would depend significantly on ongoing support and stability of accommodation and monitoring, and in particular with issues around substance use.

19. [28]

    Dr Martin said the defendant was at moderate risk of causing harm to others if he ceased to be a forensic patient, as it would be foreseeable that he would relapse into substance use, and likely thereafter that he would experience a relapse of mental illness or engage in antisocial behaviour in order to obtain money for substances, and would as a result be prone to disinhibition and poor judgment.

20. [29]

    Dr Martin said that the defendant's continuation of his forensic patient status would significantly address risk factors by providing coercive powers to reduce the risk of substance use. It would enable drug testing, for instance, and allow for apprehension in the event of breach of conditions, allowing for intervention and containment, reducing the risk of violence or general re-offending. Forensic status would essentially provide for a barrier reducing the likelihood of substance abuse, with a consequent effect of reducing risk of re-offending. Forensic patient status provided for coercive intervention in the event of not attending medical appointments or non-adherence to prescribed treatments. In Dr Martin's view, the defendant's more recent stability could largely be attributed to his being subject to forensic patient status. Without that status, it was more likely that there would be future problems around substance use.

21. [30]

    In considering alternatives, Dr Martin said it would not be appropriate to classify the defendant as an involuntary patient under the Mental Health Act 2007 (NSW). He said that a Community Treatment Order on its own would be inadequate in addressing the risks, as it would not provide for mandated drug testing for instance, and would not provide for coercive intervention in the event of substance abuse. While a Guardianship Order and a Financial Management Order would be useful in dealing with certain problems, they would not adequately or directly address the major risk factors.

22. [31]

    Dr Martin said that he was unable to see that other less restrictive means would adequately address the defendant's forensic needs regarding risk. While the defendant appeared reasonably stable and adherent under his current conditions, it was foreseeable that compliance with management strategies would deteriorate without legal conditions mandating abstinence from substances and conditions around accommodation, supervision and psychiatric assessment. Dr Martin thought a two year extension was probably appropriate.

23. [32]

    Dr Rodriguez, in his report of 12 November 2021, also considered that the defendant was suffering from Schizophrenia, Mild Intellectual Disability, Cannabis Use Disorder and Amphetamine Use Disorder, ADHD and Antisocial Personality Disorder. He went on to say:

24. [33]

    Dr Rodriguez considered that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient. He said that the defendant's problem behaviours were reactive aggression and general non-violent offending, where the victims of the offences were strangers, and the offences occurred in the victims' homes. There were usually co-offenders involved in the offences. Sometimes the offences were psychotically derived, with the defendant experiencing command hallucinations. He was under the influence of substances and some of the offences were financially motivated.

25. [34]

    He considered that the defendant would be placed in the moderate risk of violent offending, having been assessed under the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend (ARMIDILO-G), and the Historical-Clinical-Risk Management 20-Version 3 (HCR-20).

26. [35]

    Dr Rodriguez considered that the defendant manifested occasional limited insight into his mental illness and need for treatment.

27. [36]

    He considered that the defendant presented with a high loading of static risk factors and a low loading of dynamic risk factors at the present time. Dr Rodriguez thought that if the defendant received the appropriate treatment and support, his risk would fluctuate downwards. He would need a comprehensive multi-agency risk management plan in place to manage his risk of re-offending.

28. [37]

    Dr Rodriguez thought that an extension of his forensic status was the least restrictive means of care. He considered alternatives such as a Community Treatment Order, a Guardianship Order and a Financial Management Order, but considered that they would not adequately manage the risks. He said that the defendant was not currently a mentally ill person and would not be eligible to receive treatment as an involuntary patient.

29. [38]

    Dr Rodriguez thought that the defendant required an extension as a forensic patient for a period of two years. He said his mental illness and intellectual disability would not change in the ensuing years, and he would require treatment, monitoring and supervision to remain well in the community.

30. [39]

    I have also had regard to a number of determinations of the Mental Health Review Tribunal from 2019 to 2021.

Determination

1. [40]

   The parties provided detailed written submissions and made brief oral submissions.

2. [41]

   Ms Curry of counsel for the Attorney General drew particular attention to the opinions expressed by Dr Furst, views which were largely echoed by Drs Martin and Rodriguez in their reports. I set out earlier in some detail the opinions of those three doctors.

3. [42]

   Dr Lucy of counsel for the defendant drew particular attention to factors indicating some stabilisation in the defendant's condition and behaviour. These included his supported accommodation, his positive relationships with his formal support network, the support and regular contact he receives from his parents, the fact that his schizophrenia is largely in remission, that he demonstrates some insight into his condition and his past substance use, and his abstinence from drugs and alcohol demonstrated in recent urine drug screening tests. She accepted that there have been some issues where the defendant occasionally tests the boundaries and manifests inappropriate behaviour.

4. [43]

   I note that the defendant told both Dr Martin and Dr Rodriguez that he would like to be released from being a forensic patient, particularly so that he could travel to Queensland to visit his family. Nevertheless, the defendant accepted that the order should be extended for a two year period.

5. [44]

   Despite their being no opposition from the defendant, a forensic patient can be made the subject of an extension order if and only if the Court is satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and the risk cannot be adequately managed by other less restrictive means: s 122 of the MHCIFPA.

6. [45]

   Although the evidence suggests that the defendant has achieved a degree of stability and compliance, the opinion of the doctors is unanimous that it is very likely that this has been because the defendant remains a forensic patient. This is because that status provides for coercive intervention in the event of some form of non-compliance, whether with medical appointments or general behavioural matters. For that reason, they consider that the defendant's risk cannot be adequately managed by other less restrictive means.

7. [46]

   The doctors all opine that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. There was no challenge to that evidence. It is consistent with the evidence that had previously been relied upon when orders were made on 14 July 2017 and 10 October 2019 extending the defendant's status. I accept that, to some extent, the evidence relied upon when those orders were made is historical but, apart from the evidence of some stability in recent times, I do not consider that there has been much alteration in the risk if the defendant ceased to be a forensic patient.

8. [47]

   The defendant suffers from a number of conditions which are life-long, and can only be ameliorated by ongoing treatment. Two matters of particular concern are the intellectual disability and the antisocial personality disorder. The schizophrenia is able to be treated, and is being successfully treated at the present time, pharmacologically, but if that treatment was interfered with, or ceased, the doctors make clear that a relapse on the defendant's part is a serious risk. The likely permanent nature of the risk is aptly summed up by Dr Martin who said:

9. [48]

   All of these matters lead me to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means.

Conclusion

1. [49]

   Accordingly, I make the following order: